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LIBRARY 

OF  THE 

University  of  California. 

GIFT    OF 

Class 

r 

, 

"COLONY," -OR  "FREE  STATE"? 

"DEPENDENCE," -OR  "JUST  CONNECTION"? 

"EMPIRE,"- OR  "UNION"? 

An  Essay 

Based  on  the  Political  Philosophy  of  the  American  Revolution,  as  Summarized  in 

the  Declaration  of  Independence,  towards  the  Ascertainment  of  the 

Nature  of  the  Political  Relationship  Between  the  American 

Union  and  Its  Annexed  Insular  Regions 


AND 


THE  QUESTION  OF  TERMINOLOGY 

An  Address 

Containing  the  Substance  of  the  Foregoing  Essay,  with  some  Additions,  Delivered 
before  the  Section  for  the  Study  of  the  Government  of  Dependencies, 
of  the  American  Political  Science  Association,  at  the  Meeting 
held  at  Providence,  December  29,  1 906 


By  Alpheus  H.  Snow 


With  the  Compliments  of  the  Author 


Ai^PHEUS  H.  Snow, 
Metropolitan  Club, 

Washington,  D,  C. 


"COLONY," -OR  "FREE  STATE"? 

"DEPENDENCE," -OR  "JUST  CONNECTION"? 

"EMPIRE,"- OR  "UNION"? 

An  Essay 

Based  on  the  Political  Philosophy  of  the  American  Revolution,  as  Summarized  in 

the  Declaration  of  Independence,  towards  the  Ascertainment  of  the 

Nature  of  the  Political  Relationship  Between  the  American 

Union  and  Its  Annexed  Insular  Regions 


AND 


THE  QUESTION  OF  TERMINOLOGY 

An  Address 

Containing  the  Substance  of  the  Foregoing  Essay,  with  some  Additions,  Delivered 
before  the  Section  for  the  Study  of  the  Government  of  Dependencies, 
of  the  American  Political  Science  Association,  at  the  Meeting 
held  at  Providence,  December  29,  1906 


By  Alpheus  H;  Snow 


WASHINGTON 
1907 


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"COLONY,"- OR  "FREE  STATE"? 

"DEPENDENCE,"- OR  "JUST  CONNECTION"? 

"EMPIRE,"- OR   "UNION"? 


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**COLONY/'-OR  "FREE  STATE''? 

"DEPENDENCE/'-OR  "JUST  CONNECTION"? 

"EMPIRE,"-OR  "UNION"? 

From  the  time  of  the  acquisition  of  Porto  Rico  and  the 
Philippines,  in  1898,  under  a  Treaty  with  Spain  which  left  in- 
definite the  relations  between  the  American  Union  and  those 
regions,  the  question  of  the  nature  of  this  relationship  has  been 
discussed. 

The  Republican  party,  which  has  been  in  power  ever  since 
the  war,  has  justified  its  acts  on  the  ground  of  political  neces- 
sity. Its-  policy  has  been  that  of  giving  the  people  of  the 
Islands  good  administration,  just  treatment,  and  all  practicable 
self-government.  The  Democratic  party  has  declared  such  a 
policy  to  be  only  imperialism  and  colonialism  under  another 
name.  It  has  asserted  that  "no  nation  can  endure  half  RepubHc 
and  half  Empire"  and  has  "warned  the  American  people  that 
imperialism  abroad  will  lead  quickly  and  inevitably  to  despot- 
ism at  home."  It  has  characterized  the  Republican  government 
in  the  Insular  regions  as  an  "indefinite,  irresponsible,  discre- 
tionary and  vague  absolutism,"  and  Republican  policy  as  a 
policy  of  "colonial  exploitation."  That  the  American  people 
have  believed  the  Republican  administration  to  have  been  good 
and  beneficent,  is  shown  by  their  retaining  that  party  in  power. 
But  it  is  perhaps  not  too  much  to  say  that  nearly  all  thoughtful 
persons  realize  that  some  part  of  the  Democratic  complaint  is 
just,  and  that  there  is  at  the  present  time  a  lack  of  policy 
toward  the  Insular  regions,  due  to  the  inability  of  either  of  the 
political  parties,  or  the  Government,  or  the  students  and  doctors 
of  political  science,  to  propound  a  theory  of  a  just  political 
relationship  between  us  and  our  Insular  brethren  which  will 
meet  with  general  approbation. 

We  are,  however,  not  peculiar  in  this  respect.  Great  Britain, 
France  and  Germany  are  in  the  same  position.     In  none  of 

(5) 


6  " COLON Y,"-OR  "fre:e;  state"? 

these  countries  is  there  any  fixed  theory  of  the  relationship 
between  the  State  and  its  annexed  insular,  transmarine  and 
transterranean  regions.  The  British  Empire,  so  called,  con- 
taining as  it  does  several  strong  and  civilized  States  in  perma- 
nent relationship  with  Great  Britain,  gives  many  signs,  to  the 
student,  of  the  direction  in  which  political  thought  is  traveling 
in  its  progress  toward  a  correct  and  final  theory;  but  at  the 
present  time  there  seems  to  be  no  prospect  of  the  emergence 
of  a  final  theory  in  that  country.  Here  in  America,  political 
thinking,  following  the  line  of  least  resistance,  has,  as  a  general 
rule,  concentrated  itself  upon  the  Constitution  of  the  United 
States,  as  if  in  that  instrument  an  answer  was  to  be  found  for 
every  political  problem  with  which  the  Union  may  be  con- 
fronted. To  some  of  us,  however,  it  has  appeared  inconsistent 
with  the  principles  of  the  American  Revolution  that  the  Con- 
stitution of  the  United  States  should  be  the  Constitution  of  any 
communities  except  the  thirteen  States  forming  the  original 
Union  and  those  which  they  have  admitted  into  their  Union; 
and,  while  yielding  to  none  in  our  belief  in  the  supremacy  of  the 
Constitution  throughout  the  Union,  we  have  sought  to  base  the 
relationship  between  the  Union  itself  and  its  Territories  and 
annexed  insular,  transmarine  and  transterranean  regions,  upon 
such  principles  as  would  enable  the  American  Union  to  justify 
itself  in  the  eyes  of  all  civilized  nations,  and  as  would  be  con- 
sistent with  the  ideas  for  which  it  stood  at  the  Revolution. 
Those  of  us  who  thus  limit  the  effect  of  the  Constitution  to  the 
Union  are  charged  with  advocating  an  absolute  power  of  the 
Union  over  its  annexed  regions.  It  is  assumed  that  there  is  no 
intermediate  theory  between  that  which  assumes  the  Constitu- 
tion of  the  American  Union  to  extend  to  these  regions  in  some 
more  or  less  partial  and  metaphorical  way, — for  it  is  evident 
upon  inspection  that  it  cannot  extend  in  any  literal  way, — and 
that  which  assumes  that  the  Union  is  the  Government  of  all 
these  regions  with  absolute  power. 

It  is  a  somewhat  curious  illustration  of  the  truth  that  history 
repeats  itself  that  for  ten  years  before  the  Continental  Congress 
met  in  1774,  the  British  and  Americans  alike,  with  some  few 
exceptions,  discussed  the  question  of  the  relationship  between 


A  BROADER  VIEW  .  % 

Great  Britain  and  the  American  Colonies  as  one  arising  from 
the  extension  of  the  Constitution  of  the  State  of  Great  Britain 
over  America,  just  as  for  the  past  eight  years  Americans,  Porto 
Ricans  and  FiHpinos  ahke,  have,  with  few  exceptions,  discussed 
the  question  of  the  relationship  between  us  and  our  Insular 
brethren  as  one  arising  from  the  extension  of  the  Constitution 
of  the  United  States  over  these  regions.  It  was  not  until  the 
Continental  Congress  had  discussed  the  matter  for  two  years 
that  this  theory  was  definitely  abandoned  and  the  rights  of  the 
Americans  based  upon  the  principles  which  our  Revolutionary 
Fathers  considered  to  be  just.  We  have  not  yet  attained  to 
this  broader  view.  At  the  present  time  the  doctrine  of  the 
Supreme  Court,  and  therefore  of  the  Government,  is  that  all 
acts  of  the  American  Government  in  the  annexed  insular,  trans- 
marine and  transterranean  regions,  are  acts  of  absolute  power, 
when  directed  toward  communities,  though  tempered  by 
''fundamental  principles  formulated  in  the  Constitution"  or  by 
"the  applicable  provisions  of  the  Constitution,"  when  directed 
toward  individuals. 

I  shall  ask  the  reader  to  follow  me  in  trying  to  find  out  ex- 
actly what  this  broader  view  of  the  Revolutionary  Fathers 
was,  and  to  adjudge,  on  the  considerations  presented,  whether 
they  did  not  discover  the  via  media  between  the  theory  of 
the  right  of  a  State  to  govern  absolutely  its  annexed  insular, 
transmarine  and  transterranean  regions,  and  the  right  of  a 
State  to  extend  its  Constitution  over  these  regions, — regions 
which,  it  is  to  be  remembered,  can  never,  from  their  local  and 
other  circumstances,  participate  on  equal  terms  in  the  institu- 
tion or  operation  of  the  Government  of  the  State. 

-In  trying  to  rediscover  this  via  media  of  the  Fathers,  I  shall 
accept  the  Declaration  of  Independence  as  the  final  and  com- 
plete'exposition  of  their  theories ;  and  in  interpreting  that  great 
document  I  shall  conform  to  the  established  rules  of  law  gov- 
erning the  interpretation  of  written  instruments. 

Let  me  first,  however,  call  attention  to  the  well-known,  but 
very  interesting  fact,  that  the  American  people,  throughout  this 
period  of  eight  years  since  the  Spanish  war,  during  which  the 
question  has  been  discussed  by  experts  almost  exclusively  as 


8  "coivONY,"-OR  "i^ree;  state:"  ? 

one  which  relates  to  the  appHcation  of  the  Constitution  out- 
side the  Union,  have  always  had  an  idea  that  it  was  the  Declara- 
tion of  Independence,  rather  than  the  Constitution,  to  which 
we  were  to  look  for  the  solution  of  our  Insular  problems.  In 
1900,  the  Democrats,  in  their  platform,  "reaffirmed  their  faith 
in  the  Declaration  of  Independence — that  immortal  proclama- 
tion of  the  inalienable  rights  of  man"  and  described  it  as  "the 
spirit  of  our  Government,  of  which  the  Constitution  is  the  form 
and  letter."  The  Republicans  in  their  platform  declared  it  to 
be  "the  high  duty  of  Government  *  *  *  to  confer  the 
blessings  of  liberty  and  civilization  upon  all  rescued  peoples," 
and  announced  their  intention  to  secure  to  these  peoples  "the 
largest  measure  of  self-government  consistent  with  their  wel- 
fare and  our  duties."  The  Populists,  in  their  platform  in  the 
same  year,  insisted  that  "the  Declaration  of  Independence, 
the  Constitution  and  the  American  flag  are  one  and  insep- 
arable." The  Silver  Republicans  declared  that  they  "recog- 
nized that  the  principles  set  forth  in  the  Declaration  of  Inde- 
pendence are  fundamental  and  everlastingly  true  in  their 
application  to  government  among  men."  The  Anti-Imperialists 
declared  that  the  truths  of  the  Declaration,  "not  less  self- 
evident  today  than  when  f  rst  announced  by  the  Fathers,  are 
of  universal  application,  and  cannot  be  abandoned  while  gov- 
ernment by  the  people  endures."  In  1904,  the  Democratic 
party,  while  professing  adherence  to  fundamental  principles, 
declared  in  favor  of  casting  into  the  outer  darkness  of  a  ficti- 
tious "independence"  every  people  "incapable  of  being  governed 
under  American  laws,  and  in  consonance  with  the  American 
Constitution,"  but  the  Popuhsts  still  held  to  the  principles  of 
the  Declaration,  while  the  Republicans  held  to  their  declara- 
tions of  1900. 

It  is  an  ancient  and  well-established  rule  of  law  for  the  inter- 
pretation of  written  instruments  that  when  the  meaning  of  the 
words  used  is  not  so  clear  as  to  leave  no  room  for  doubt,  and 
when  there  thus  exists  what  is  called  in  law  an  ambiguity,  it  is 
proper  to  consider  the  circumstances  surrounding  the  execution 
of  the  instrument,  so  that,  by  placing  ourselves  as  nearly  as 
possible  in  the  same  situation  in  which  the  persons  who  exe- 


TH^  REI^ORMATION  PRINCIPLEIS  9 

cuted  the  instrument  were  at  the  time  of  its  execution,  we  may 
have  a  basis  for  forming  a  reasonable  opinion  as  to  which  of 
two  or  more  possible  constructions  is  correct.  That  such  an 
ambiguity  exists  in  the  Declaration  is  undeniable.  Opinions 
concerning  the  meaning  of  its  philosophic  statements,  and  in- 
deed of  nearly  all  its  statements,  differ  between  extremes  at  one 
of  which  are  arrayed  those  who,  with  Rufus  Choate  and  John 
James  Ingalls,  regard  its  philosophic  declarations  as  "glittering 
generalities,"  and  at  the  other  of  which  stand  that  great  body  of 
men  and  women,  living  and  dead,  who,  with  Abraham  Lincoln, 
believe,  and  have  believed,  that  these  declarations  are  the 
foundation  of  the  only  true  and  final  science  of  pplitics.  Fol- 
lowing this  ancient  rule  of  interpretation,  therefore,  let  us 
consider  the  circumstances  surrounding  the  Declaration  of 
Independence. 

From  the  earliest  times,  the  political  philosophy  of  the  people 
of  America  was  directly  connected  with  the  religious  and  polit- 
ical philosophy  of  the  Reformation.  The  essence  of  that  phi- 
losophy was  that  man  was  essentially  a  spiritual  being;  that 
each  man  was  the  direct  and  immediate  creature  of  a  personal 
God,  who  was  the  First  Cause ;  that  each  man  as  such  a  spiritual 
creature  was  in  direct  and  immediate  relationship  with  God,  as 
his  Creator ;  that  between  men,  as  spiritual  creatures,  there  was 
no  possibility  of  comparison  by  the  human  mind,  the  divine 
spark  which  is  the  soul  being  an  essence  incapable  of  measure- 
ment and  containing  possibilities  of  growth,  and  perhaps  of 
deterioration,  known  only  to  God;  that  therefore  all  men,  as 
essentially  spiritual  beings,  were  equal  in  the  sight  of  all  other 
men.  Luther  and  Calvin  narrowed  this  philosophy  by  assum- 
ing that  this  spiritual  nature  and  this  equality  were  properties 
only  of  professing  Christians,  but  Fox,  followed  by  Penn,  en- 
larged and  universalized  it  by  treating  the  Christian  doctrine  as 
declaratory  of  a  universal  truth.  Penn's  doctrine  of  the  uni- 
versal "inner  light,"  which  was  in  every  man  from  the  beginning 
of  the  world  and  will  be  to  the  end,  and  which  is  Christ, — 
according  to  which  doctrine  every  human  being  who  has  ever 
been,  who  is,  or  who  is  to  be,  is  inevitably  by  virtue  of  his 
humanity,   a   spiritual   being,   the   creature   of   God,   and,   as 


lO  " COLON Y,"-OR   "free   state"  ? 

directly  and  immediately  related  spiritually  to  Him,  the  equal  of 
every  other  man, — marked  the  completion  of  the  Reformation. 

According  to  this  theory,  the  life  of  animals,  who,  being- 
created  unequal,  are  from  birth  to  death  engaged  in  a  strug- 
gle for  existence  in  which  the  fittest  survives,  is  eternally  and 
universally  differentiated  by  a  wide  and  deep  chasm  from  the 
life  of  men,  who,  being  created  equal,  are  engaged  in  a  struggle 
against  the  deteriorating  forces  of  the  universe  in  which  each 
helps  each  and  all,  and  in  which  each  and  all  labor  that  each 
and  all  may  not  only  live,  but  may  live  more  and  more  abun- 
dantly. 

According  to  this  theory,  also,  the  glaring  inequalities  of 
physical  strength,  of  intellectual  power  and  cunning,  and  of  ma- 
terial wealth,  which  are,  on  a  superficial  view,  the  determining 
facts  of  all  social  and  political  life,  are  merely  unequal  distri- 
butions of  the  common  wealth,  and  each  person  is  considered 
to  hold  and  use  his  strength,  his  talents  and  his  property  for 
the  development  of  each  and  all  as  beings  essentially  equal. 

According  to  this  theory,  also,  there  is  for  mankind  no  "state 
of  nature"  in  which  men  are  equally  independent  and  equally 
disregardful  of  others,  which  by  agreement  or  consent  becomes 
a  "state  of  society"  in  which  men  are  equally  free  and  equally 
regardful  of  others,  but  the  "state  of  nature"  and  the  "state  of 
society"  are  one  and  the  same  thing.  Every  man  is  regarded 
as  created  in  a  state  of  society  and  brotherhood  with  all  other 
men,  and  the  "state  of  nature," — man's  natural  estate  and 
condition, — is  the  "state  of  society." 

Were  anyone  asked  to  sum  up  in  the  most  concise  form  pos- 
sible the  ultimate  doctrine  of  the  Reformation,  he  could,  per- 
haps, epitomize  it  no  more  correctly  than  by  the  single  proposi- 
tion, "All  men  are  created  equal."  This  doctrine  of  human 
equality  arising  from  common  creation,  growing  out  of  Luther- 
anism  and  Calvinism  through  the  intellectual  influence  of  Penn, 
and  the  broadening  effect  of  life  in  this  new  and  fruitful  land, 
underlay  all  American  life  and  institutions. 

One  of  the  results  of  this  final  theory  of  the  Reformation 
was  the  conception,  by  certain  devout  men  and  great  scholars, 
of  a  "law  of  nature  and  of  nations,"  based  on  revelation  and 


THE  AhttOtD  RIGHT  O^  INEQUALITY  II 

reason,  which  was  universally  prevalent,  and  which  governed 
the  relations  of  men,  of  communities,  of  states  and  of  nations. 
Out  of  this  there  had  then  emerged  the  conception  which  has 
now  become  common  under  the  name  of  International  Law, 
which  treats  of  the  temporary  relations  between  independent 
states.  But  the  conception  of  the  "law  of  nature  and  of  na- 
tions" was,  as  has  been  said,  vastly  wider  than  this.  It  was  a 
universal  law  governing  all  possible  forms  of  human  relation- 
ship, and  hence  all  possible  relations  between  communities  and 
states,  and  therefore  determining  the  rights  of  communities 
and  states  which  were  in  permanent  relationship  with  one  an- 
other. Based  on  the  theory  of  the  equality  of  all  men  by 
reason  of  their  common  creation,  it  recognized  just  public  senti- 
ment as  the  ultimate  force  in  the  world  for  effectuating  this 
equality,  and  considered  free  statehood  as  the  prime  an-d  uni- 
versal requisite  for  securing  that  free  development  and  opera- 
tion of  public  sentiment  which  was  necessary  in  order  that 
public  sentiment  might  be  just. 

While  this  philosophy  of  the  Reformation  was  thus  extending 
itself  in  America,  both  among  the  Governments  and  the  people, 
and  in  Europe  among  the  people,  the  Governments  of  Europe, 
though  not  recognizing  the  existence  of  any  "law  of  nature 
and  of  nations"  whatever,  were  nevertheless  acting  on  the 
basis  that  such  a  law  did  exist  and  was  based  on  the  proposi- 
tion that  all  men  are  created  unequal,  or  that  some  are  created 
equal  and  some  unequal.  The  alleged  superior  was  sometimes 
a  private  citizen,  sometimes  a  noble,  sometimes  a  monarch, 
sometimes  a  government,  sometimes  a  state,  sometimes  a  na- 
tion. The  inferior  was  said  to  be  "dependent"  upon  the  supe- 
rior— that  is,  related  to  him  directly  and  without  any  connect- 
ing justiciary  medium,  so  that  the  will  of  the  superior  con- 
trolled the  will  and  action  of  the  inferior.  It  was  this  alleged 
law  of  nature  and  of  nations,  based  on  an  alleged  divine  or 
self-evident  right  of  inequality — an  inequality  arising  from 
creation — which  was  the  basis  of  the  British  Declaratory  Act 
of  1766,  which  may  perhaps  be  called  "The  Declaration  of 
Dependence."  In  that  Act,  the  State  of  Great  Britain  de- 
clared, (basing  itself  evidently  upon  the  law  of  nature  and  of 


12  "COIvONY,"-OR   ''FREE   STATE"  ? 

nations,  since  there  was  no  treaty,)  that  the  American  Colonies 
"have  been,  are,  and  of  right  ought  to  be,  subordinate  unto  and 
dependent  upon  the  Imperial  Crown  and  Parliament  of  Great 
Britain,"  and  that  the  Parliament  of  Great  Britain  "had,  hath, 
and  of  right  ought  to  have,  full  power  and  authority  to  make 
laws  and  statutes  of  sufficient  force  and  validity  to  bind  the 
Colonies  and  people  of  America,  subjects  of  the  Crown  of  Great 
Britain,  in  all  cases  whatsoever."  The  expression  "of  right 
ought  to  have"  clearly  meant  "has  by  the  law  of  nature  and  of 
nations."  Great  Britain  was  thus  declared  to  be  the  superior 
of  America,  with  power  according  to  the  law  of  nature  and  of 
nations,  to  control,  by  its  will,  the  will  and  action  of  America 
as  a  "dependent"  country,  and  of  each  and  all  of  its  inhabitants 
as  "dependent"  individuals. 

We  discover,  then,  from  an  examination  of  the  circumstances 
surrounding  the  Declaration  of  Independence,  a  most  interest- 
ing situation.  A  young  nation,  separated  by  a  wide  ocean  from 
Europe,  settled  by  men  who  were  full  of  the  spirit  of  the 
Reformation,  deeply  convinced,  after  a  national  life  of  one 
hundred  and  fifty  years,  that  these  principles  were  of  universal 
application,  was  suddenly  met  by  a  denial  of  these  principles 
from  the  European  State  with  which  they  were  most  intimately 
related.  This  denial  was  accompanied  by  acts  of  that  State 
which  amounted  to  a  prohibition  of  the  application  of  these 
principles  in  Arnerican  political  life.  This  European  State  was 
indeed  the  mother-country  of  America,  and  the  Americans 
were  bound  to  their  English  brethren  by  every  tie  of  interest 
and  affection.  The  Americans  were  only  radical  Englishmen, 
who  gloried  in  the  fact  that  England  of  all  the  countries  of 
Europe  had  gone  farthest  in  accepting  the  principles  of  the 
Reformation,  and  who  had  emigrated  reluctantly  from  Eng- 
land, because  they  were  out  of  harmony  with  the  tendency  of 
English  political  life  to  compromise  between  the  principles  of 
Medisevalism  and  the  principles  of  the  Reformation.  The 
Declaratory  Act  of  1766  brought  clearly  into  comparison  the 
political  system  of  America,  as  opposed  to  the  political  system 
of  Europe.  It  was  inevitable  from  that  moment  that  the  Amer- 
ican System,  based  on  the  principles  of  the  Reformation  in  their 


TH^  tlEIvlGIOUS  BASIS  O^  AUtRtCA  13 

broadest  sense  and  their  most  universal  application  and  briefly 
summed  up  in  the  proposition  that  "all  men  are  created  equal," 
must  conquer,  or  be  conquered  by,  the  European  System,  based 
either  on  the  principles  of  Mediaevalism,  summed  up  in  the 
proposition  that  "all  men  are  created  unequal,"  or  on  a  com- 
promise between  the  principles  of  Mediaevalism  and  the  Refor- 
mation, summed  up  in  the  proposition  that  "some  men  are 
created  equal,  and  some  unequal." 

In  the  light  of  this  situation,  let  us  examine  the  words  of  the 
Declaration.  The  philosophical  statements  in  which  we  are 
interested,  read: 

"When  in  the  course  of  hum.an  events,  it  becomes  nec- 
essary for  one  people  to  dissolve  the  political  bands  which 
have  connected  them  with  another,  and  to  assume,  among 
the  powers  of  the  earth,  the  separate  and  equal  station  to 
which  the  laws  of  Nature  and  of  Nature's  God  entitle 
them,' a  decent  respect  to  the  opinions  of  mankind  re- 
quires that  they  should  declare  the  causes  which  impel 
them  to  the  separation : — 

"We  hold  these  truths  to  be  self-evident :  That  all  men 
are  created  equal;  that  they  are  endowed  by  their  Cre- 
ator with  certain  unalienable  rights,  that  among  these 
are  life,  liberty  and  the  pursuit  of  happiness;  that  to 
secure  these  rights,  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of  the 
governed ;  that  whenever  any  form  of  government  be- 
comes destructive  of  these  ends,  it  is  the  right  of  the 
people  to  alter  or  to  abolish  it,  and  to  institute  new  gov- 
ernment, laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form,  as  to  them  shall 

seem  most  likely  to  effect  their  safety  and  happiness. 
******* 

"Finally  we  do  assert  and  declare  *  *  *  that 
these  United  Colonies  are,  and  of  right  ought  to  be,  free 
and  independent  states,  *  *  *  and  that  all  political 
connection  between  them  and  the  State  of  Great  Britain 
is,  and  ought  to  be,  totally  dissolved." 

The  most  reasonable  interpretation,  as  it  seems  to  me,  of  the 
statement  that  "all  men  are  created  equal"  is,  as  I  have  said, 
that  it  is,  and  was  intended  to  be,  an  epitome  of  the  doctrine  of 
the  Reformation.     There  will  be  those  who  will  scoff  at  the 


14  "COtONY/'-OR   "^mn   STATE     ? 

suggestion  that  a  political  body  like  the  Continental  Congress 
should  have  based  the  whole  political  life  of  the  nation  upon  a 
religious  doctrine.  But  it  is  to  be  remembered  that  the  Conti- 
nental Congress  was  not  an  ordinary  political  body.  It  was 
the  most  philosophic  and  at  the  same  time  the  most  religious 
and  the  most  intellectually  untrammeled  body  of  men  who  ever 
gathered  to  discuss  political  theories  and  measures.  Meeting 
under  circumstances  where  weakness  of  resources  compelled 
the  most  absolute  justness  in  their  reasons  for  taking  up  arms, 
they  must  have  discussed  their  position  from  the  standpoint  of 
morality  and  religion.  John  Adams  tells  us  that  one  of  the 
main  points  discussed  at  the  opening  of  the  Continental  Con- 
gress, when  they  were  framing  the  ultimatum  which  finally 
took  the  form  of  the  Fourth  Resolution  was,  whether  the  Con- 
gress should  "recur  to  the  law  of  nature"  as  determining  the 
rights  of  America.  He  says  that  he  was  "very  strenuous  for 
retaining  and  insisting  on  it,"  and  the  Resolutions  show  that  he 
succeeded,  for  they  based  the  American  position  on  the  prin- 
ciples of  "free  government"  and  "good  government,"  recog- 
nized that  the  "consent"  of  the  American  Colonies  to  Acts  of 
the  British  Parliament  justly  regulating  the  matters  of  common 
interest  was  a  "consent  from  the  necessity  of  the  case  and 
a  regard  to  the  mutual  interests  of  both  countries,"  and 
claimed  the  rights  of  "life,  liberty  and  property"  without  refer- 
ence to  the  British  Constitution  or  the  American  Charters. 
Jefiferson  tells  us  that  throughout  the  period  of  nearly  two  years 
which  intervened  between  the  assembling  of  the  Congress  and 
the  promulgation  of  the  Declaration,  the  principles  of  the  law 
of  nature  and  of  nations  set  forth  in  the  preamble  were  dis- 
cussed, and  that  when  he  wrote  the  preamble  he  looked  at  no 
book,  but  simply  stated  the  conclusions  at  which  the  Congress, 
with  apparently  practical  unanimity,  had  arrived. 

But  it  is  not  necessary,  it  would  seem,  to  resort  to  external 
evidence  to  prove  that  the  Declaration  is  based  on  the  doctrine 
of  the  Reformation.  In  several  places  it  seems  to  expressly 
declare  that  the  rights  claimed  by  America  are  claimed  under 
the  law  of  nature  and  of  nations  based  on  divine  revelation  and 
on  human  reason.     In  the  first  sentence,  it  declares  that  "the 


THK  DIVINE  RIGHT   O?   E^QUAI^ITY  1 5 

law  of  Nature  and  of  Nature's  God"  entitles  the  Americans, — it 
having  ''become  necessary"  for  them  "to  dissolve  the  political 
bands  which  have  connected  them  with"  the  people  of  Great 
Britain, — to  "assume  a  separate  and  equal  station  among  the 
powers  of  the  earth."  In  the  next,  it  declares  not  only  "that  all 
men  are  created  equal,"  but  that  they  have  "unalienable  rights 
of  life,  liberty  and  the  pursuit  of  happiness,"  not  by  virtue  of 
any  social  contract  or  other  form  of  consent,  but  by  "endow- 
ment,"— that  is,  by  voluntary  gift  and  grant, — of  "their  Crea- 
tor." This  doctrine  of  "endowment"  of  men  with  "unalienable 
rights,"  by  "their  Creator,"  is  of  course  the  Christian  doctrine. 
In  the  concluding  part  of  the  Declaration,  it  is  declared  not  only 
that  the  United  Colonies,  as  "the  United  States  of  America," 
are  "free  and  independent  states,"  but  that  they  "of  right  ought 
to  be"  such;  and  in  that  paragraph  the  "connection  between 
them  and  the  State  of  Great  Britain"  is  not  merely  declared  to 
be  "totally  dissolved,"  but  it  is  also  declared  that  it  "ought  to 
be"  so  dissolved.  There  was  certainly  no  "right"  of  the  United 
Colonies,  as  the  United  States  of  America,  to  be  free  and  inde- 
pendent states  and  to  declare  the  connection  between  them  and 
the  State  of  Great  Britain  to  be  dissolved,  except  upon  prin- 
ciples of  some  implied  common  law  which  was  supreme  over  the 
Constitution  of  the  State  of  Great  Britain  and  the  Charters  and 
Constitutions  of  the  Colonies,  for  none  of  these  Constitutions  or 
Charters  made  provision  for  the  dissolution  of  the  connection 
on  any  contingency. 

There  is  necessarily  implied  in  the  statement  that  "all  men 
are  created  equal"  and  that  "they  are  endowed  by  their  Creator 
with  certain  unalienable  rights,  among  which  are  life,  liberty 
and  the  pursuit  of  happiness,"  the  conception  of  the  right  of 
human  equality  as  a  divine  right.  But  is  there  any  other  basis 
than  divine  right  on  which  to  rest  a  doctrine  of  human  equal- 
ity? A  doctrine  of  human  equality  by  human  right,  is  a  doc- 
trine of  equality  by  consent.  But  if  a  man  can  consent  regard- 
ing his  equality  with  another  man  or  with  other  men,  he  can, 
as  iias  been  often  pointed  out,  consent  himself  into  a  state 
of  permanent  inequality,  inferiority  and  slavery,  even  supposing 


16 

that  a  basis  can  be  found  for  the  assumption  of  an  original  state 
of  equaHty  arising  from  consent. 

Assuming  then,  for  the  sake  of  argument  at  least,  that  the 
proposition  that  all  men  are  created  equal  is  and  was  intended 
to  be  a  statement  of  the  Reformation  doctrine  in  its  broadest 
and  most  universal  form,  a  clue  is  given  for  the  interpretation 
of  the  propositions  which  follow.  If  politics,  as  well  as  relig- 
ion, assumes  as  its  basis  the  proposition  that  all  men  are  spirit- 
ual beings  in  direct  and  permanent  relationship  with  God,  and 
hence  equal  as  regards  one  another,  then  the  purpose  of  both 
politics  and  religion  is  to  preserve  this  equality, — politics  by 
compulsion  and  religion  by  persuasion.  Because  all  men  are 
spiritual  beings  in  direct  relationship  with  a  common  Creator 
who  has  established  laws  under  which  He  is  tht  final  judge, 
which  men  can  ascertain  and  apply  through  revelation  and 
reason,  men  are  declared  to  have  rights.  Man  is  thus  distin- 
guished from  animals,  who  have  no  rights  because  they  have  no 
capacity  to  know  the  law — a  knowledge  which  must  inevitably 
precede  a  knowledge  of  the  right.  Politics  looks  at  the  uni- 
versal needs  of  all  men, — those  needs  which  each  man  has  in 
common  with  all  humanity — and  from  the  universal  needs  as- 
sumes a  universal  unalienable  right  of  each  against  each  other 
and  against  all,  and  a  universal  duty  of  each  toward  each  other 
and  toward  all,  to  supply  these  needs.  Religion  regards  the 
supplying  of  these  universal  needs  as  a  duty  toward  God. 
Hence  politics  adopts  as  its  second  self-evident  truth,  the  propo- 
sition that  all  men  "are  endowed  by  their  Creator  with  certain 
unalienable  rights,  among  which  are  life,  liberty  and  the  pursuit 
of  happiness."  The  primary  and  universal  needs  of  all  man- 
kind, regarded  as  equal  creatures  of  a  common  Creator,  are  the 
need  of  life,  the  need  of  liberty  and  the  need  of  pursuing  happi- 
ness. These  needs  are  unaHenable.  No  man  can  rid  himself 
of  them  without  destroying  himself  as  an  equal  creature  of  a 
common  Creator.  Consequently  the  rights  and  duties  corre- 
sponding to  these  unalienable  needs  are  themselves  unalienable. 
There  is  no  denial  here  of  alienable  rights  and  duties.  But.it  is 
clearly  laid  down  as  a  fundamental  principle  of  the  all-pervasive 
common  law,  that  rights  given  by  the  Creator  are  unalienable, 


GOVERNMENT  NOT  THE  WILL  O^  THE  MAJORITY  1 7 

and  that  no  human  being,  however  emphatically  he  may 
declare,  or  will,  or  agree  to  the  contrary,  may  by  any  possible 
act  of  any  other  human  being  or  of  any  set  of  human  beings, 
whether  calling  themselves  a  government  or  not,  or  by  any 
possible  means,  deprive  himself,  or  be  deprived  of  the  right  of 
life,  liberty  and  the  pursuit  of  happiness — these  being  neces- 
sarily incidental  to  the  original  right  of  equality. 

To  apply  this  interpretation  to  the  relationship  between  our- 
selves and  our  brethren  of  the  Insular  regions :  They  are, 
according  to  the  universal  and  common  law  of  nature  and  of 
nations,  as  we  and  all  other  human  beings  are,  equally  creatures 
of  a  common  Creator  and  equal  with  us.  Under  that  all- 
pervasive  law,  they,  with  us,  and  all  other  human  beings,  are 
created  with  the  unalienable  need  of  life,  liberty  and  the  pursuit 
of  happiness,  and  therefore  with  corresponding  unalienable 
rights.  Under  that  law  we  cannot  deprive  them  of  these  un- 
alienable rights,  nor  allow  them  to  deprive  themselves  of  their 
unalienable  rights,  nor  allow  a  part  of  them  to  deprive  the  others 
of  their  unalienable  rights.  According  to  the  philosophy  of  the 
Revolution,  every  man,  every  community,  every  state  and  every 
nation  is  bound  to  enforce,  and  cause  to  be  enforced,  this  law  of 
nature  and  of  nations,  which  prevents  the  voluntary  or  involun- 
tary alienation  by  any  man,  any  community,  any  state  or  any 
nation  of  his  or  its  rights  of  life,  liberty  and  the  pursuit  of 
happiness. 

The  Declaration,  having  thus  described  the  ends  of  all  gov- 
ernment, proceeds  to  describe  the  methods  by  which  these  ends 
are  accomplished.  It  declares  that  "to  secure  these  rights  gov- 
ernments are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed."  Governments,  it  is  de- 
clared, are  instituted  solely  to  secure  to  each  and  every  being 
his  and  their  unalienable  rights,  as  equal  creatures  of  a  common 
Creator,  to  life,  liberty  and  the  pursuit  of  happiness.  Here  is  a 
plain  denial  that  government  is  universally  the  expression  of 
the  will  of  the  majority;  for  it  is  matter  of  common  knowledge 
that  in  only  a  few  of  the  most  highly  civilized  countries  of  the 
world  does  the  will  of  the  majority,  as  it  is  expressed,  secure  to 


l8  '  "C0I,0NY,"-0R   "pRtn  state"? 

each  and  every  person  his  and  their  unalienable  rights  of  life, 
liberty  and  the  pursuit  of  happiness. 

There  is  also  an  implied  denial  of  the  proposition  that  govern- 
ment is  the  will  of  the  majority,  in  the  proposition  that  "gov- 
ernments are  instituted  among  men."  If  the  Fathers  had  meant 
that  government  was  the  will  of  the  majority  they  would  have 
said,  "Men  have  the  right  to  institute  governments  for  them- 
selves, according  to  the  will  of  the  majority."  What  they  did 
was  simply  to  state  as  a  fact  that  "governments  are  instituted 
among  men,"  which  fact  is  wholly  inconsistent  with  the  hypoth- 
esis of  a  universal  right  of  each  and  all  communities  to  institute 
government  for  themselves. 

There  is,  however,  it  would  seem,  clearly  implied  in  the 
statement  that  "to  secure  these  rights  governments  are  insti- 
tuted among  men,"  the  statement  that  governments  are  uni- 
versal, that  they  begin  with  and  continue  through  human  exist- 
ence,— that  government  is,  as  Calvin  said,  of  "not  less  use 
among  men  than  bread  and  water,  light  and  air,  and  of  much 
more  excellent  dignity,"  and  therefore  the  prime  necessity  of 
human  life, — and  that  there  is  a  universal  right  of  all  men,  all 
communities,  all  states  and  all  nations,  to  such  government  as 
will  secure  these  rights ;  for  the  rights  which  are  to  be  secured 
being  universal,  government,  which  is  the  instrumentality  for 
securing  them,  must  also  be  universal. 

Having  thus  declared  governments  of  a  kind  suitable  to 
secure  the  unalienable  rights  of  the  individual  to  be  a  universal 
right,  and  having  by  implication  declared  that  it  is  not  essential 
in  all  cases  that  governments  should  be  instituted  by  the  people 
governed,  and  that  therefore  there  may  be  cases  in  which  gov- 
ernments may  justly  be  instituted  by  an  external  power,  the 
Declaration  proceeds  to  lay  down  as  a  universal  proposition 
that  all  governments, — existing,  as  they  do,  solely  for  the  pur- 
pose of  securing  to  each  and  every  individual  his  and  their  un- 
alienable rights, — do,  universally,  whether  instituted  by  the 
consent  of  the  governed  or  not,  "derive  their  just  powers  from 
the  consent  of  the  governed."  The  expression  "deriving  their 
just  powers  from"  is  generally  read  as  if  it  were  "by,"  and  the 
expression  "the  consent  of  the  governed"  as  if  it  were  "the 


GOVERNMENTS  THE  AGENTS  01?  THE  GOVERNED  19 

will  of  the  majority."  Both  of  these  readings  are  so  plainly 
inconsistent  with  both  the  text  and  the  context  as  to  be  clearly 
inadmissible.  If  the  words  are  taken  in  their  usual  and  proper 
meaning  and  read  in  the  light  of  the  context  and  the  sur- 
rounding circumstances,  it  seems  at  least  reasonable  to  con- 
clude that  the  expression  ''deriving  their  just  powers  from  the 
consent  of  the  governed,"  is  and  was  intended  to  be  an  epitome 
of  the  two  fundamental  principles  of  the  law  of  agency, 
brought  over  into  the  English  law  from  the  Roman.  These 
principles  are:  ''Obligatio  mandati  consensu  contrahentiuni 
consistit,"  a  translation  of  which  is,  "The  powers  of  an  agent 
are  derived  from  the  consent  of  the  contracting  parties,"  and 
''Rei  turpis  nullum  mandatum  est,"  a  translation  of  which  is 
"No  agent  can  have  unjust  powers."  If  this  interpretation  be 
correct,  the  expression  "that  to  secure  these  rights  govern- 
ments are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed"  means  that  there  is  no  uni- 
versal absolute  right  of  communities,  states,  or  nations,  to 
institute  their  own  governments,  but  that  every  government, 
however  instituted,  is  universally  the  agent  of  the  governed,  to 
secure  to  every  individual,  every  community,  every  state,  and 
every  nation  governed,  his  and  their  unalienable  rights  of  life, 
liberty  and  the  pursuit  of  happiness  and  to  effectuate  the  equal- 
ity of  all  men  as  the  creatures  of  a  common  Creator. 

On  this  interpretation  a  rule  is  laid  down  to  determine  under 
what  circumstances  a  community,  state,  or  nation  has  the  right 
to  institute  its  own  government.  Its  rights  are  to  be  deter- 
mined by  the  principles  of  agency.  Agencies  among  individ- 
uals are  of  several  kinds,  express  and  implied,  voluntary  and 
involuntary.  There  may  be  co-agencies,  in  which  the  perform- 
ance of  one  general  agency  is  distributed  among  several  agents. 
A  person  of  full  capacity  has  the  right,  according  to  the  com- 
mon law  of  persons,  to  appoint  his  own  agent,  unless  he  is  in 
such  just  relationship  with  others  that  the  common  interests 
require  that  he  should  adopt  as  his  agent  an  agent  appointed 
by  the  others.  So  communities,  states  and  nations  which  are 
of  full  capacity,  have  the  right,  assuming  the  existence  of  this 
common  law  of  nature  and  of  nations,  to  appoint  their  own 


r  UNIVERSITY  \ 


20  "COtONY/*-OR  "jPR^e;  STATE "  ? 

governments,  subject  to  the  necessary  limitations  growing  out 
of  their  just  relationships  to  other  communities,  states  and  na- 
tions. Infants,  and  persons  non  compos  or  spendthrift,  are 
subject,  by  the  principles  of  the  common  law  of  persons,  to 
have  an  involuntary  agency  created  for  them  by  the  Chancellor 
until  the  disability  is  removed,  if  the  disability  is  temporary, 
or  permanently,  if  the  disability  is  permanent.  The  same  is 
true  by  the  law  of  nature  and  of  nations,  if  the  interpretation 
I  have  suggested  be  correct,  regarding  communities,  states  and 
nations,  which  are  in  a  condition  of  infancy  or  anarchy,  or 
are  spendthrift.  The  Chancellor  or  Justiciar,  whether  a  person, 
a  state,  or  a  nation,  must  possess  the  qualities  and  attributes  of 
a  Chancellor  and  Justiciar,  and  proceed  as  a  Chancellor  and 
Justiciar.  ,  Otherwise  the  attempt  to  create  an  involuntary 
agency  for  the  suitor  is  nugatory.  The  fact  that  a  person  who 
is  an  infant,  or  non  compos,^  or  spendthrift,  has  an  involuntary 
agency  created  for  him  by  the  Chancellor,  does  not  destroy,  or 
in  any  way  affect,  the  juridical  personality  of  such  person,  or 
his  political  equality  with  other  persons;  and,  by  parity  of 
reasoning,  the  fact  that  a  community  which  would  otherwise 
be  recognized  as  having  free  statehood  and  political  personality 
and  equality  with  other  free  states,  has  an  involuntary  govern- 
ment appointed  for  it  by  a  Justiciar  State,  on  account  of  its 
being  in  a  weak  or  infantile  condition,  or  on  account  of  its  being 
anarchic  or  spendthrift,  can  not  destroy  or  in  any  way  affect  its 
free  statehood, — or,  what  is  the  same  thing,  its  political  person- 
ality,— or  its  equality  with  other  free  states. 

A  further  meaning  apparently  is  that  the  first  object  of  all' 
government  is  to  do  justice,  and  the  second  object  to  do  the 
will  of  the  governed.  A  government  which  recognizes  itself 
as  deriving  its  just  powers  from  the  consent  of  the  governed,  is 
bound  to  do  justice  in  such  manner  as  will  conform  to  the  just 
public  sentiment  of  the  governed.  It  is  in  no  case  bound  to 
execute  the  will  of  the  governed,  much  less  the  will  of  the  ma- 
jority, unless  that  will  conforms  to  justice  in  the  particular  case. 
Nor  can  it  do  an  unjust  act  and  plead  in  justification  the  con- 
sent of  the  governed,  for  the  consent  of  the  governed  to  an 
unjust  act  is  void  by  the  law  of  nature  and  of  nations.    This 


]^R^^  STATEHOOD  21 

principle  was  often  appealed  to  by  the  Americans,  notably  in 
the  final  manifesto  of  1778,  as  an  answer  to  the  British  claim 
that  the  Americans  were  bound  by  the  restrictive  Acts  of  Par- 
liament on  account  of  their  acquiescence  in  them.  They  said 
that  an  attempted  consent  to  an  unjust  act  of  government  was 
a  nugatory  act,  an  unjust  act  of  government  being  itself  nuga- 
tory, and  deserving  obedience  only  from  motives  of  policy. 

This  doctrine  that  government  is  the  doing  of  justice  accord- 
ing to  public  sentiment  is,  of  course,  utterly  opposed  to  the 
doctrine  that  government  is  the  will  of  the  majority.  If  gov- 
ernment is  the  doing  of  justice  according  to  public  sentiment, 
government  is  the  expression  and  application  of  a  spiritually 
and  intellectually  educated  public  sentiment,  since  the  knowl- 
edge of  what  is  just  comes  only  after  a  course  of  spiritual  and 
intellectual  education,  and  the  forms  and  methods  of  govern- 
ment should  be  such  as  are  adapted  to  such  spiritual  and  intel- 
lectual education.  Education  takes  place  by  direct  personal 
contact,  and  can  best  be  accomplished  only  through  the  estab- 
lishment of  permanent  groups  of  individuals  who  are  all  under 
the  same  conditions.  The  formation  and  expression  of  a  just 
public  sentiment,  therefore,  requires  the  establishment  of  per- 
manent groups  of  persons,  more  or  less  free  from  any  external 
control  which  interferes  with  their  rightful  action,  under  a 
leadership  which  makes  for  their  spiritual  and  intellectual 
education  in  justice.  Such  permanent  groups  within  territorial 
limits  of  suitable  size  for  developing  and  expressing  a  just 
public  sentiment,  are  free  states.  Territorial  divisions  of  per- 
sons set  apart  for  the  purpose  of  convenience  in  determining 
the  local  public  sentiment,  regardless  of  its  justness  or  un just- 
ness, are  not  states,  but  are  mere  voting  districts.  Just  public 
sentiment,  for  its  expression  and  application,  requires  the  ex- 
istence of  many  small  free  states,  disconnected  to  the  extent 
necessary  to  enable  each  to  be  free  from  all  improper  external 
control  in  educating  itself  in  the  ways  of  justice;  mere  public 
sentiment,  for  its  expression  and  application,  requires  only  the 
existence  of  a  few  great  states,  unitary  in  their  form  and 
divided  into  voting  districts.  Just  public  sentiment,  as  the  basis 
of  government,  is  a  basis  which  makes  government  a  mighty 


22  COI.ONy/'-OR   "FrKE  state"? 

instrument  for  spirituality  and  growth ;  mere  public  sentiment, 
regardless  of  its  justness  or  un justness,  as  the  basis  of  govern- 
ment, is  a  basis  which  makes  government  a  mighty  instrument 
for  brutality  and  deterioration.  Human  equality,  unalienable 
rights,  just  public  sentiment,  and  free  statehood,  are  inevitably 
and  forever  linked  together,  as  reciprocal  cause  and  effect. 

All  the  American  public  men  were  agreed  that  the  Amer- 
ican Colonies,  so  called,  were  and  always  had  been  free  states, 
and  that  the  State  of  Great  Britain,  acting  through  or  sym- 
bolized by  its  Chief  Executive  or  its  Chief  Legislature,  or  both 
of  them,  was  a  governmental  agency,  and  a  connecting  medium, 
of  all  the  free  states  which  were  connected  with  it,  and  which 
with  it  formed  what  they  called  "The  British  Empire."  Some 
based  this  right  of  free  statehood  and  political  connection  on 
the  Colonial  Charters ;  some  on  the  doctrine  of  the  extension  to 
the  Colonies  of  the  Constitution  of  the  State  of  Great  Britain 
in  a  partial  and  metaphorical  manner;  some  thought  that  the 
Colonies  had  always  been  not  only  free  states,  but  also  free  and 
independent  states,  and  that  the  political  connection  between 
them  and  the  State  of  Great  Britain  was,  and  always  had  been, 
by  consent,  that  is,  by  implied  treaty.  Upon  careful  examina- 
tion, all  these  theories  were  found  to  be  untenable.  The 
Colonial  Charters  clearly  did  not  intend  to  recognize  the 
Colonies  as  free  states,  much  less  as  free  and  independent 
states;  the  doctrine  of  the  extension  to  them  of  the  British 
Constitution  was  inconsistent  with  their  statehood  in  any  sense ; 
and  there  was  not  a  vestige  of  anything  which  could  be  re- 
garded as  a  treaty  between  the  Colonies  and  Great  Britain. 
Finally,  therefore,  all  were  apparently  brought  to  see  that  there 
was  nothing  on  which  to  base  the  American  claim  that  the 
Colonies  were  and  always  had  been  states,  free  or  free  and  in- 
dependent, except  "the  law  of  nature  and  of  nations,"  and  not 
even  the  law  of  nature  and  of  nations  as  it  was  understood  by 
the  Governments  of  Europe,  but  a  law  of  nature  and  of  nations 
which  was  based  on  the  broadest  principles  of  the  Reformation. 
Free  statehood  for  the  American  Colonies  was  apparently  as- 
serted as  a  universal  right  of  all  communities,  states  and  na- 
tions, because  free  statehood  was  considered  by  the  framers  of 


THE  LIMITED  RIGHTS   01^   THE   PEOPI.E  23 

the  Declaration  to  be  the  universal  and  only  means  of  forming 
and  expressing  a  just  public  sentiment,  and  therefore  to  be  the 
universal  and  only  means  of  securing  the  universal  and 
unalienable  rights  of  individuals.  The  ultimate  meaning  of 
the  expression  "that  to  secure  these  rights  Governments  are  in- 
stituted among  men,  deriving  their  just  powers  from  the  con- 
sent of  the  governed,"  seems  therefore  to  be  that  by  the  law  of 
nature  and  of  nations  there  is  a  universal  right  of  free  state- 
hood of  all  communities  on  the  face  of  the  earth  within  terri- 
torial limits  of  suitable  size  for  the  development  and  operation 
of  a  just  public  sentiment. 

The  Declaration  denies  even  to  all  the  people  of  a  free  state 
the  right  to  change  thei%government  when  and  how  they  will, 
and  according  to  mere  public  sentiment,  regardless  of  its  just- 
ness. Their  right  "to  alter  or  abolish"  a  "form  of  government" 
is  declared  to  exist,  according  to  the  law  of  nature  and  of  na- 
tions, only  when  that  form  of  government  "becomes  destructive 
of  these  ends,"  that  is,  when  a  government,  instead  of  securing 
the  unalienable  rights  of  the  individuals  governed,  attempts  to 
destroy  these  rights.  Moreover,  it  is  declared  that  when  the 
people  alter  or  abolish  one  form  of  government,  their  right  of 
establishing  a  new  government  is  not  absolute,  but  is  limited, 
according  to  the  law  of  nature  and  of  nations,  so  that  in  estab- 
lishing a  new  form  of  government  they  are  obliged  to  "lay  its 
foundation  on  such  principles  and  organize  its  powers  in  such 
form,  as  to  them  shall  seem  most  likely  to  effect  their  safety  and 
happiness," — that  is,  to  secure  the  unalienable  rights  of  the  indi- 
vidual to  life,  liberty  and  the  pursuit  of  happiness.  This  limita- 
tion upon  the  powers  of  even  the  whole  people  of  a  state  neces- 
sarily results  from  the  fact  that  the  law  of  nature  and  of  nations 
is  universal  and  governs  so  completely  every  human  act  and 
relationship  that  no  act  can  be  done  and  no  relationship  formed 
which  violates  the  unalienable  rights  of  any  individual.  How 
the  law  of  nature  and  of  nations  is  to  be  enforced,  the  Declara- 
tion does  not  say.  Apparently  the  obligation  to  enforce  it  rests 
upon  every  individual,  every  community,  every  body  corporate, 
every  state  and  every  nation,  and  the  ultimate  force  which  com- 


24  "COI.ONY,"-OR   "^Rtl&  STAT^"  ? 

pels  its  application  is  the  just  public  sentiment  of  the  world,  or, 
as  Rivier  called  it,  "the  common  juridical  conscience." 

The  declaration  of  the  universal  right  of  free  statehood  is 
not  only  made  in  the  statement  that  "to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed."  It  is  asserted  with 
much  more  clearness  in  the  concluding  part  of  the  Declaration, 
which  reads: 

"We,  therefore,  *  *  *  declare  that  these  United 
Colonies  are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states,  *  *  *  and  that  all  political  connec- 
tion between  them  and  the  State  of  Great  Britain  is, 
and  ought  to  be,  totally  dissolved." 

In  the  first  draft  of  the  concluding  part  of  the  Declaration, 
Jefferson  wrote: 

"We,  therefore,  *  *  *  utterly  dissolve  and  break 
off  all  political  connection  which  may  have  heretofore 
subsisted  between  us  and  the  people  or  Parliament  of 
Great  Britain,  and  finally  we  do  assert  and  declare  these 
Colonies  to  be  free  and  independent  states." 

The  resolution  of  the  Virginia  Convention  of  May  15,  1776, 
which  was  the  basis  of  the  Declaration,  read: 

"That  the  delegates  *  *  *  be  instructed  to  pro- 
pose to  [the  Continental  Congress]  to  declare  the 
United  Colonies  free  and  independent  states,  absolved 
from  all  *  *  *  dependence  upon  the  Crown  or 
Parliament  of  Great  Britain." 

A  comparison  of  the  words  used  by  the  Congress  with  those 
used  by  the  Virginia  Convention  and  those  used  by  Jefferson 
in  the  first  draft,  shows  how  much  the  judgment  of  the  Con- 
gress was  clarified  by  the  great  debate  which  occurred  between 
May  15  and  June  10,  1776,  when  the  wording  above  quoted 
was  agreed  upon. 

The  wording  of  the  Virginia  resolution,  if  it  had  been 
adopted,  would  have  implied  that  the  Colonies  had  theretofore 
been  "dependent  upon  the  Crown  and   Parliament  of  Great 


CONNECTION,   UNION,   ME:RGE:R  25 

Britain,"  and  that  their  statehood,  their  free  statehood,  and 
their  independent  statehood  came  into  existence  by  virtue  of 
their  declaring  themselves  free  and  independent  states. 

The  wording  of  Jefferson's  first  draft,  if  it  had  been  adopted, 
would  have  implied  that  a  "political  connection"  might  or 
might  not  have  theretofore  existed  between  the  American  peo- 
ple and  "the  people  or  Parliament  of  Great  Britain,"  and  that 
if  such  a  political  connection  had  existed,  the  American  people 
had  the  right  to  secede  from  it,  whenever  they  considered  that 
the  terms  of  the  connection  were  not  observed  by  the  people  or 
Parliament  of  Great  Britain ;  and  that  by  such  act  of  secession, 
and  by  their  Declaration,  their  rights  of  statehood,  of  free 
statehood  and  of  independent  statehood  came  into  existence. 

The  wording  of  the  Declaration  which  was  actually  adopted 
implied  that  the  Colonies  had  always  been  free  states  or  free 
and  independent  states,  and  that,  by  the  Declaration,  at  most 
their  right  of  independent  statehood  came  into  existence;  that 
they  had  theretofore  at  all  times  been  in  political  connection, 
either  as  free  states  under  the  law  of  nature  and  of  nations, 
or  as  free  and  independent  states  by  implied  treaty,  with  the 
free  and  independent  state  of  Great  Britain;  that  the  dissolu- 
tion of  the  connection  had  not  come  about  by  an  act  of  secession 
on  their  part,  but  was  due  to  the  violation,  by  the  State  of  Great 
Britain,  either  of  the  law  of  nature  and  of  nations,  or  of  the 
implied  treaty  on  which  the  political  connection  was  based. 

The  term  "connection"  was  an  apt  term  to  express  a  rela- 
tionship of  equality  and  dignity.  "Connection"  implies  two 
things,  considered  as  units  distinct  from  one  another,  which  are 
bound  together  by  a  connecting  medium.  Just  connection  im- 
plies free  statehood  in  all  the  communities  connected.  Union 
is  a  form  of  connection  in  which  the  connected  free  states  are 
consolidated  into  a  unity  for  the  common  purposes,  though 
separate  for  local  purposes.  Merger  is  the  fusion  of  two  or 
more  free  states  into  a  single  unitary  state.  Connection  be- 
tween free  states  may  be  through  a  legislative  medium,  or 
through  a  justiciary  medium,  or  through  an  executive  medium. 
The  connecting  medium  may  be  a  person,  a  body  corporate,  or 
a    state.     States    connected    through    a    legislative    medium, 


26  " COLON Y,"-OR   ''free   state"  ? 

whether  a  person,  a  body  corporate  or  a  state,  and  whether 
wholly  external  to  the  states  connected  or  to  some  extent  in- 
ternal to  them,  whose  legislative  powers  are  unlimited  or  which 
determines  the  limits  of  its  own  legislative  powers,  are  "de- 
pendent" upon  or. "subject"  to  the  will  of  the  legislative  me- 
dium. Such  states  are  "dependencies,"  "dominions,"  "subject- 
states,"  or  more  accurately  "slave-states," — or  more  accurately 
still,  not  states  at  all,  but  mere  aggregations  of  slave- 
individuals.  States  connected  through  a  legislative  medium, 
whether  a  person,  a  body  corporate  or  a  state,  and  whether 
wholly  external  to  the  states  connected  or  in  part  internal  to 
them,  whose  legislative  powers  are  granted  by  the  states  and 
which  has  only  such  legislative  powers  as  are  granted,  are  in  a 
condition  of  limited  dependence,  dominion,  and  subjection;  but 
their  relationship  is  by  their  voluntary  act  and  they  may,  and 
by  the  terms  of  the  grant  always  do  to  some  extent  control  the 
legislative  will  to  which  they  are  subject  and  on  which  they 
are  dependent.  Where  states  are  connected  or  united  through 
a  justiciary  medium,  whether  that  justiciary  medium  is  a  per- 
son, a  body  corporate,  or  a  state,  all  the  states  are  free  states, 
their  relationships  being  governed  by  law.  Where  states  are 
connected  through  an  executive  medium,  whether  that  execu- 
tive medium  is  a  person,  a  body  corporate,  or  a  state,  all  the 
states  are  free  and  independent  states,  and  each  acts  according 
to  its  will.  All  connections  in  which  the  legislative  medium, — 
whether  a  person,  a  body  corporate  or  a  state,  and  whether 
wholly  external  to  the  states  connected,  or  to  some  extent  in- 
ternal to  the  states  connected, — has  unlimited  legislative  powers 
or  determines  the  limits  of  its  own  legislative  powers,  are 
fictitious  connections,  the  relationship  being  really  one  which 
implies  "empire"  or  "dominion"  on  one  side,  and  "subjection" 
or  "dependence"  on  the  other.  Such  connections  are  properly 
called  "empires"  or  "dominions."  So  also  all  connections  in 
which  the  only  connecting  medium  is  a  common  executive, 
whether  a  person,  a  body  corporate  or  a  state,  are  fictitious 
connections,  the  relationship  being  one  of  "permanent  alliance" 
or  "confederation"  between  independent  states.  Such  connec- 
tions are  properly  called  "alliances"  or  "confederations."    The 


THE    RIGHT    01?    SI^LF-GOVEJRNMKNT  27 

only  true  connections  are  those  in  which  there  is  a  legislative 
medium,  whether  a  person,  a  body  corporate  or  a  state,  whose 
legislative  powers  are  limited,  by  agreement  of  the  connected 
states,  to  the  common  purposes,  and  those  in  which  there  is  a 
justiciary  medium,  whether  a  person,  a  body  corporate,  or  a 
state,  which  recognizes  its  powers  as  limited  to  the  common 
purposes  by  the  law  of  nature  and  of  nations,  and  which  ascer- 
tains and  applies  this  law,  incidentally  adjudicating,  according 
to  this  law,  the  limits  of  its  own  jurisdiction.  Just  connec- 
tions tend  to  become  unions,  it  being  found  in  practice  neces- 
sary, for  the  preservation  of  the  connection  in  due  order,  that 
the  power  of  adjudicating  and  applying  the  law  for  the  com- 
mon purposes  should  extend  not  only  to  the  states,  but  to  all 
individuals  throughout  the  states. 

Thus  "dependence,"  as  a  fictitious  and  vicious  form  of  con- 
nection, is,  it  would  appear,  forever  opposed  to  "connection" 
of  a  just  and  proper  kind.  If  it  were  attempted  to  sum  up 
the  issue  of  the  American  Revolution  in  an  epigram,  would  not 
that  epigram  be:  "Colony," — or  "Free  State"?  "Depend- 
ence,"— or  "Just  Connection"?  "Empire," — or  "Union"? 

Summarizing,  then,  the  result  of  this  examination  of  the 
philosophy  of  the  Declaration,  so  far  as  it  relates  to  communi- 
ties rather  than  persons,  it  appears  that  the  central  conception 
of  this  philosophy  is  that  of  a  universal  right  of  free  statehood. 
This  conception,  more  specifically,  is,  it  seems,  that  all  com- 
munities on  the  earth's  surface,  within  limits  of  territorial  ex- 
tent of  such  reasonable  dimensions  that  within  the  area  of  each 
the  just  common  sentiment  about  local  concerns  and  external 
relations  can  be  conveniently  ascertained  and  executed,  have 
an  unalienable  right  to  be  free  states  and  as  such  to  have  their 
respective  just  local  sentiments  about  local  matters  ascertained 
and  executed  by  their  respective  governments,  this  being,  ac- 
cording to  Revolutionary  philosophy,  essential  to  make  effective 
the  right  of  each  and  every  person  to  life,  liberty,  and  the  pur- 
suit of  happiness.  But  a  universal  right  of  free  statehood  does 
not  imply  a  universal  right  of  self-government.  Statehood  and 
self-government  are  two  different  and  distinct  conceptions. 
The  Americans  claimed  the  right  of  free  statehood  as  a  part  of 


28  " COLON y/'-OR   ''FREE   STATK"  ? 

the  universal  rights  of  man,  but  they  claimed  the  right  of  self- 
government  because  they  were  Englishmen  trained  by  genera- 
tions of  experience  in  the  art  of  self-government  and  so  capable 
of  exercising  the  art.  A  free  state  is  not  less  or  more  a  free 
state  because  it  has  self-government.  It  is  a  free  state  when 
its  just  public  sentiment  is  to  any  extent  ascertained  and  exe- 
cuted by  its  government,  free  from  the  control  of  any  external 
power.  It  does  not  prevent  a  region  from  being  a  free  state 
that  its  government  is  wholly  or  partly  appointed  by  an  ex- 
ternal power,  if  that  government  is  free  from  external  control 
in  ascertaining  and  executing  the  just  local  sentiment  to  any 
extent.  Nor  does  it  interfere  with  the  right  of  free  statehood 
when  an  external  power  stands  by  merely  to  see  that  the  local 
government  ascertains  and  executes  the  just  local  sentiment  to 
a  proper  extent.  The  external  power  in  that  case  is  upholding 
the  free  statehood  of  the  region.  It  stands  as  surety  for  the 
continuance  of  free  statehood. 

The  right  of  self-government,  according  to  this  view,  is  a 
conditional  universal  right.  When  a  community,  inhabiting  a 
region  of  such  territorial  extent  that  it  is  not  too  large  to  make 
it  possible  for  a  just  public  sentiment  concerning  its  own  affairs 
to  be  developed  and  executed,  and  not  so  small  as  to  make  it 
inconvenient  that  it  should  be  in  any  respect  free  from  external 
control,  is  of  such  moral  and  intellectual  capacity  that  it  can 
form  and  execute  a  just  public  sentiment  concerning  its  internal 
affairs  and  its  relations  with  other  communities,  states  and  na- 
tions, it  has  not  only  the  right  of  free  statehood, — that  is,  of 
political  personality, — which  is  of  universal  right,  but  also  the 
right  of  self-government.  The  right  of  such  a  free  state  to 
self-government  is  complete  if  there  be  no  just  political  connec- 
tion or  union  between  it  and  other  free  states,  or  partial,  if  such 
a  just  connection  or  union  exists,  being  limited,  in  this  latter 
case,  to  the  extent  necessary  for  the  preservation,  in  due  order, 
of  the  connection  or  union. 

The  Declaration,  by  declaring  the  Colonies  to  be  free  and 
independent  States  and  following  this  statement  by  the  state- 
ment that  the  political  connection  between  them  and  the  State 
of  Great  Britain  was  dissolved,  leaves  it  doubtful  whether  the 


TH^   RIGH'T   of    INDEiPENDENCE  ^Q 

American  claim  was  that  the  Colonies  had  always  been  free 
and  independent  States  in  treaty  connection  with  Great  Britain 
or  merely  free  states  in  connection  with  Great  Britain  under  the 
law  of  nature  and  of  nations.  The  arrangement  of  the  sen- 
tences was  probably  necessary  to  satisfy  the  extreme  states'- 
rights  party,  but  the  study  of  great  documents  discloses  that 
nearly  all  contain  such  compromises,  and  that  the  judgment  of 
posterity  usually  approves  the  judgment  of  the  less  extreme 
party.  When  we  consider,  however,  that  even  Jefferson,  the 
most  extreme  of  the  states'-rights  party  in  the  Continental 
Congress,  has  recorded  his  belief  that  the  whole  issue  of  the 
Revolution  could  have  been  settled  if  Great  Britain  had  adopted 
the  principle  of  Lord  Chatham's  bill,  and  if  that  bill  on  the  one 
side  and  the  Fourth  Resolution  on  the  other  had  been  taken  as 
the  basis  of  settlement,  it  is  at  least  not  unreasonable  to  con- 
clude that  the  extreme  states'-rights  theory  was  put  forward 
more  in  order  that  the  Americans  might  have  something  to 
concede  in  a  bargain  with  Great  Britain  than  from  any  belief 
in  the  justness  of  it,  and  that  the  real  belief  of  the  Americans 
was  that  the  Colonies  had  always  been  free  states,  but  not  in- 
dependent until  they  so  declared  themselves,  and  that  their 
political  connection  with  the  State  of  Great  Britain  was  under 
the  law  of  nature  and  of  nations,  and  not  by  implied  treaty  with 
the  State  of  Great  Britain. 

Independence  was  regarded,  if  this  interpretation  be  correct, 
as  a  conditional  universal  right  of  free  states.  Those  free  states 
which  conform  to  the  conditions  necessary  to  independence — 
great  physical  strength,  great  moral  and  intellectual  ability,  and 
great  qualities  of  leadership — were  regarded  as  entitled  to  the 
right  of  independence.  But  independence  of  a  free  state,  as 
regarded  other  free  states,  meant,  to  the  Fathers,  only  leader- 
ship and  judgeship.  The  law  of  nature  and  of  nations,  being 
universal,  they  considered  as  abolishing  sovereignty  in  the 
European  sense,  so  that  the  highest  function  of  an  independent 
State  was  to  be  the  Justiciar  of  other  States.  In  the  literature 
of  the  Revolution  we  find  the  rights  of  free  and  independent 
states  described  as  rights  of  "jurisdiction" — not  of  "sover- 
eignty." 


30  "COtONV/'-OR   "FRIJE   state:"? 

Connection  between  free  States  on  free  principles  was  re- 
garded by  the  Fathers  as  the  proper  and  perhaps  the  normal 
condition.  They  recognized  that  connection,  while  based  on 
the  assumption  of  the  original  independence  of  the  units,  neces- 
sarily implied  a  surrender  of  the  right  of  final  decision  concern- 
ing all  or  a  part  of  the  common  purposes  to  a  Justiciar  State,  or 
of  the  right  of  legislation  for  the  common  purposes,  expressly 
defined  by  written  agreement,  to  a  Central  Government.  Polit- 
ical connection  with  European  States  was  dissolved  in  the  Revo- 
lution, and  thereafter  refrained  from,  because  the  European 
States  stood  for  a  law  of  nature  and  of  nations  which  did  not 
permit  of  free  states  being  connected  on  free  principles. 

Taking  the  whole  Declaration  together,  and  reading  it  in  the 
light  of  the  political  literature  which  was  put  forth  on  both  sides 
of  the  water  between  the  years  1764  and  1776,  which  is  too 
voluminous  to  be  referred  to  here  specifically,  it  seems  to  be 
necessary  to  conclude  that  the  views  of  the  American  statesmen 
of  the  period  concerning  the  nature  of  the  connection  between 
Great  Britain  and  the  Colonies,  in  its  details,  were  these : 

They  considered,  as  I  interpret  their  language,  that  the 
connection  between  the  American  Colonies,  as  free  states,  and 
the  free  and  independent  State  of  Great  Britain  had  existed 
and  of  right  ought  to  have  existed  under  the  law  of  nature  and 
of  nations,  interpreted  in  so  broad  a  sense  that  it  may  perhaps 
be  called  the  American  system  of  the  law  of  nature  and  of  na- 
tions. They  accordingly  claimed,  as  I  understand  them,  that 
Great  Britain,  as  a  free  and  independent  state,  had  power,  as 
Justiciar  over  the  American  free  states  for  the  common  pur- 
poses of  the  whole  connection,  to  finally  decide,  in  a  judicial 
manner,  according  to  the  principles  of  the  law  of  nature  and  of 
nations,  upon  all  questions  arising  out  of  the  connection  between 
them;  and  that  each  of  the  American  free  states  had  power, 
through  its  legislature,  to  legislate  according  to  the  just  pub- 
lic sentiment  in  each,  concerning  its  purely  local  matters,  and 
had  the  right  to  have  its  local  legislation  executed  by  its  execu- 
tive, and  interpreted  and  applied  in  private  cases  by  its  courts. 

Some  of  the  Americans,  and  those  the  most  patriotic  and 
conservative,  thought  that  Great  Britain  had  jurisdiction  to 


ame:rtcan  policy  continuous  31 

ascertain  and  execute  the  law  of  nations  for  the  common  pur- 
poses, and  in  the  exercise  of  that  jurisdiction  to  control,  by  its 
decrees  and  regulations,  the  action  of  individuals  in  the  Colo- 
nies. This  was  to  regard  Great  Britain  and  America  as  con- 
solidated for  the  common  purposes  so  as  to  form  what  may  be 
called  a  Justiciary  Union.  They  were  content,  so  long  as  Great 
Britain  acted  on  the  theory  that  she  was  the  Justiciar  of  the 
British-American  Union  for  the  common  purposes,  and  main- 
tained a  competent  tribunal  for  determining  what  were  common 
and  what  local  purposes  according  to  the  principles  of  the  law 
of  nature  and  of  nations,  that  she  should  finally  determine  the 
limits  of  her  own  jurisdiction  as  the  Justiciar  State  of  the 
Union.  While  I  do  not  mean  to  say  that  Great  Britain  ever 
recognized  that  the  American  Colonies  were  free  states  and 
that  she  was  only  a  Justiciar  State  with  power  of  final  decision 
according  to  the  law  of  nature  arid  of  nations  over  the  whole 
British-American  Union  for  common  purposes,  yet  I  think  it 
may  not  be  wholly  incorrect  to  say  that  from  1700  to  1763,  the 
King  and  the  Parliament  of  Great  Britain,  advised  by  the  Com- 
mittee of  the  Privy  Council  for  Plantation  Affairs  assisted  by 
the  Board  of  Commissioners  for  Trade  and  Plantations,  really 
acted  as  the  Supreme  Administrative  Tribunal  for  applying  the 
principles  of  the  law  of  nature  and  of  nations  in  the  decision  of 
the  questions  common  to  all  the  free  states  of  a  de  facto  British- 
American  Union  and  as  a  necessary  incident  thereto,  decided 
the  Hmits  of  the  jurisdiction  of  Great  Britain  as  the  Justiciar 
State  of  this  de  facto  British- American  Union. 

In  this  view,  the  actions  of  the  Americans  show  the  evolution 
of  a  continuous  theory  arid  policy,  and  the  application  of  a  sin- 
gle system  of  principles, — a  system  which  was  based  upon  free 
statehood,  just  connection  and  union.  The  British- American 
Union  of  1763  was  a  Union  of  States  under  the  State  of  Great 
Britain  as  Justiciar,  that  state  having  power  to  dispose  of  and 
make  all  rules  and  regulations  respecting  the  connected  and 
united  free  states,  needful  to  protect  and  preserve  the  connec- 
tion and  union,  according  to  the  principles  of  the  law  of  nature 
and  of  nations.  The  dissolution  of  this  Union,  caused  by  the 
violation  by  the  State  of  Great  Britain  of  its  duties  as  Justiciar 


3^  "cotoNY,"-oR  "^Rt^  state:*'? 

State,  gave  a  great  impetus  to  the  extreme  states '-rights  party, 
and  the  next  connection  formed, — that  ^f  1778  under  the 
Articles  of  Confederation, — was  not  a  Union,  the  Common 
Government  (the  Congress)  being  merely  a  Chief  Executive. 
Such  a  connection  proving  to  be  so  slight  as  to  be  little  more 
than  a  fiction,  they  formed,  under  the  Constitution  of  1787,  the 
only  other  kind  of  a  union  which  appears  to  be  practicable, 
namely,  a  union  under  a  common  government  which  was  a 
Chief  Legislature  for  all  the  connected  and  united  states  by 
their  voluntary  grant,  and  whose  powers  were  expressly  limited, 
by  limitation  in  the  grant,  to  the  common  purposes  of  the  whole 
connection  and  union  of  free  states. 

The  power  exercised  by  a  Justiciar  State  in  a  Justiciary 
Union,  the  Fathers  recognized  as  being  neither  strictly  legis- 
lative, nor  strictly  executive,  nor  strictly  judicial,  but  a  power 
compounded  of  all  these  three  powers.  They  considered  that 
it  was  to  be  exercised  after  investigation  by  judicial  methods, 
both  of  the  facts  and  principles  and  of  the  public  sentiment; 
that  the  just  public  sentiment  of  the  free  states  connected  and 
united  with  the  Justiciar  State  was  to  be  executed  in  local  mat- 
ters and  was  to  be  considered  in  the  determination  of  the  com- 
mon affairs;  and  that  the  action  of  the  Justiciar  State  was  to 
result,  after  proper  hearing  of  the  free  states  concerned,  in 
regulations  which  were  to  have  the  force  of  supreme  law  in 
each  of  the  connected  and  united  free  states  respectively.  This 
kind  of  power,  which  the  Fathers  called  "the  superinj^ending 
power"  or  "the  disposing  power"  under  the  law  of  nature  and 
of  nations,  and  which  may  be  called,  using  an  expression  now 
coming  into  use,  "the  power  of  final  decision,"^  being  neither 
legislative  nor  executive,  but  more  nearly  executive  than  legis- 
lative, the  more  conservative  among  them  considered  might  be 
exercised,  consistently  with  the  principles  of  the  law  of  nature 
and  of  nations,  either  by  the  Legislative  Assembly  of  the 
Justiciar  State  or  by  its  Chief  Executive.  This  right  of  both 
the  Legislative  Assembly  and  of  the  Chief  Executive  to  exer- 
cise the  powers  of  the  Justiciar  State  under  the  law  of  nature 
and  of  nations  is,  I  believe,  also  recognized  by  our  Constitu- 
tion, as  I  have  elsewhere  attempted  to  show. 


JUSTICIARY  UNIONS  33 

The  Fathers  further  considered,  if  my  understanding  of 
their  beHef  is  correct,  that,  inasmuch  as  both  the  Legislative 
Assembly  and  the  Chief  Executive  of  the  Justiciar  State,  in 
exercising  its  power  over  the  free  states  connected  and  united 
v/ith  it,  and  throughout  the  Justiciary  Union,  have  as  their 
function  the  ascertainment  of  facts  and  the  application  of  the 
principles  of  the  law  of  nature  and  of  nations  to  those  facts, 
they  ought  to  exercise  this  function  by  the  advice  of  a  perma- 
nent Administrative  Tribunal,  properly  constituted  so  as  to 
advise  them  intelligently  and  wisely.  As  I  have  said  above, 
the  Revolutionary  statesmen  considered,  as  it  would  seem, 
that  the  Committee  of  the  Privy  Council  for  Plantation  Af- 
fairs, assisted  by  the  Board  of  Commissioners  for  Trade  and 
Plantations,  had,  up  to  1763,  constituted  such  an  Administra- 
tive Tribunal.  They  considered  also,  it  would  seem,  that 
neither  the  Chief  Executive  nor  the  Legislative  Assembly  was 
bound  by  the  action  of  this  Administrative  Tribunal,  its  action 
being  wholly  advisory,  but  that  the  Chief  Executive  was  bound 
to  take  its  advice  before  making  his  dispositions ;  and  that  the 
Chief  Executive,  when  acting  as  an  Administrative  Tribunal 
for  disposing  and  regulating  the  common  affairs  of  the  free 
states  of  the  Justiciary  Union,  after  taking  the  advice  of  this 
permanent  Administrative  Tribunal,  was  a  tribunal  of  first 
instance.  They  further  considered,  as  it  would  seem,  that  the 
Legislative  Assembly,  when  acting  as  an  Administrative  Tri- 
bunal for  adjudicating  and  regulating  the  common  affairs  of  the 
Justiciary  Union,  was  a  tribunal  of  final  instance,  whose  dispo- 
sitions and  regulations  superseded  those  of  the  Chief  Executive 
in  so  far  as  they  conflicted  with  them.  It  was,  as  I  understand 
it,  because  the  situation  of  affairs  in  the  British-American 
Union  from  17CXD  to  1763  conformed  to  the  theoretical  ideas  of 
the  Americans  as  to  the  true  nature  of  the  relationship  between 
the  American  Free  States  and  the  State  of  Great  Britain,  that 
they  were  ready  to  return  to  that  situation  at  all  times  between 
1763  and  1778.  In  the  latter  year,  the  spirit  of  American  na- 
tionality manifested  itself  so  strongly  that  all  thought  of  polit- 
ical connection  with  Great  Britain  was  abandoned. 

The  practical  result  of  this  theory  is,  that  the  Chief  Ex- 
3 


34  "coi^ny/*-or 

ecutive  of  a  Justiciar  State  may  exercise  the  power  of  the 
Justiciary  State,  after  investigation  and  adjudication  and  after 
taking  the  advice  of  a  properly  constituted  permanent  Admin- 
istrative Tribunal  given  after  investigation  and  upon  adjudica- 
tion, and  that  such  action  may  take  the  form  of  regulations 
concerning  the  common  affairs  of  the  free  states  of  the 
Justiciary  Union  (and  even  concerning  the  local  affairs  of  the 
respective  free  states,  when  regulations  concerning  local  af- 
fairs are  reasonably  and  justly  necessary,  as  incidental  to  the 
regulation  of  the  common  affairs,  in  order  to  make  the  regu- 
lation of  the  common  affairs  effective),  and  that  such  regula- 
tions may  extend  to  the  regulation  of  the  conduct  of  individ- 
uals; and  that  the  Legislative  Assembly  of  the  Justiciar  State 
may  exercise  the  same  power,  to  the  same  extent,  and  that  its 
dispositions  and  regulations  supersede  the  dispositions  and 
regulations  of  the  Chief  Executive  in  so  far  as  they  conflict  with 
them.  This  conclusion  seems  correct,  if  we  accept  as  correct 
the  premise  of  a  universal  and  common  law  of  nature  and  of 
nations,  based  on  human  equality  arising  from  creation;  of  a 
universal  and  unalienable  human  right  of  life,  liberty  and  the 
pursuit  of  happiness;  of  a  universal  right  of  agency-govern- 
ment of  a  kind  necessary  to  secure  these  rights ;  of  a  universal 
right  of  free  statehood  of  all  communities  within  reasonable 
teritorial  limits  suitable  for  the  formation  and  application  of 
just  local  public  sentiment,  as  the  necessary  means  to  secure 
the  right  to  agency-government;  of  a  universal  right  of  free 
states  to  be  connected  or  united  with  other  free  states  on  just 
principles  of  the  law  of  nature  and  of  nations;  of  a  universal 
conditional  right  of  free  states  to  be  self-governing  free  states, 
if  capable  of  self-government ;  of  a  universal  conditional  right 
of  self-governing  free  states  to  be  independent  free  states,  if 
capable  of  independence;  and  of  a  universal  conditional  right 
of  independent  free  states  to  be  justiciar  states  of  justiciary 
unions  of  free  states,  if  capable  of  judgeship  and  able  to  make 
their  dispositions  and  regulations  effective. 

Of  course  there  must  be  conditions  of  transition  where  the 
relations  between  free  states  which  would  normally  be  in  union, 
or  between  detached  portions  of  what  would  normally  be  a 


tHt   AMERICAN    SYSTEM  35 

unitary  state,  temporarily  assume  a  form  which  is  partly  one 
of  union  or  merger,  and  partly  of  dependency.  The  justifica- 
tion of  all  such  forms  of  relationship  must,  it  would  seem,  be 
found  in  the  fundamental  right  which  every  independent  state, 
whether  a  justiciar  state  or  not,  has  to  the  preservation  of  its 
existence  and  its  leadership  or  judgeship — that  is,  in  the  right 
of  self-preservation,  which,  when  necessary  to  be  invoked, 
overrules  all  other  rights.  On  this  theory  must,  it  would 
seem,  be  explained  the  relations  between  the  American  Union 
and  its  Territories,  between  Germany  and  x\lsace-Lorraine, 
and  between  England  and  Ireland.  On  this  theory  of  self- 
preservation,  also,  must,  it  would  seem,  be  explained  the  per- 
manent relationship  of  dependency  which  exists  between  the 
District  of  Columbia  and  the  American  Union — such  depend- 
ency being  necessary  to  the  preservation  of  the  life  of  the 
Union. 

Thus,  if  our  interpretation  of  the  Declaration  is  correct, 
there  was  evolved  in  it,  out  of  the  original  proposition  that 
"all  men  are  created  equal,"  a  complete  system  of  the  philosophy 
of  government,  directly  the  opposite  of  the  system  of  Europe, 
which  was  based  on  the  proposition  that  "all  men-  are  created 
unequal,"  or  that  "some  are  created  equal  and  some  unequal ;" 
and  the  Declaration  of  Independence  was  a  declaration  of  an 
American  System,  as  opposed  to  the  European  System.  If 
this  interpretation  be  correct,  it  was  to  preserve  this  American 
System  that  President  Washington  advised  against  "political 
connection"  with  Europe,  and  that  President  Jefferson  warned 
America  against  "entangling  alliances ;"  it  was  this  American 
System  which  President  Monroe  and  President  Adams  de- 
clared to  have  extended  itself  throughout  this  hemisphere ;  it 
was  this  American  System  to  preserve  which  the  Civil  War 
was  fought  and  to  the  maintenance  of  which  President  Lincoln 
rededicated  the  American  people  on  the  field  of  Gettysburg; 
it  is  this  American  System  which  President  Roosevelt  has  up- 
held against  the  forces  in  our  midst,  which  on  the  one  side 
have,  by  the  wrongful  use  of  accumulations  of  wealth,  sought 
to  establish  a  doctrine  of  inequality  based  on  the  possession 
of  property,  and  on  the  other  side,  by  denying  the  rightful- 


36  "C0I.0NY,"-0R 

ness  of  all  accumulations  of  wealth,  have  sought  to  establish 
a  doctrine  that  the  inequalities  of  physical  wealth  and 
intellectual  ability  are  to  be  destroyed,  instead  of  being  em- 
ployed, by  those  endowed  with  great  wealth  or  great  ability, 
as  the  common  wealth,  in  helping  each  and  all  to  secure  their 
unalienable  rights  of  life,  liberty  and  the  pursuit  of  happiness 
and  thus  to  realize  the  divine  right  of  equality ;  it  is  this  Ameri- 
can System  which  the  American  Congress,  under  the  leader- 
ship of  President  McKinley  and  President  Roosevelt,  has 
actually  applied  in  the  determination  of  our  relations  with  the 
Insular  regions,  so  that  they  are  to-day  free  states  de  facto, 
connected  and  united  with  the  American  Union  as  the  Justiciar 
State,  and  so  that  it  needs  only  our  recognition  to  convert  them 
into  free  states  de  jure  and  to  bring  into  legal  existence  a 
Greater  American  Union  of  Free  States,  of  which  our  present 
Union  will  be  the  Supreme  Justiciary  Head,  determining  the 
questions  arising  out  of  the  relationship,  not  by  edict  founded 
on  will  and  force,  but  by  decision  carefully  made  in  each  case 
after  ascertaining  the  facts  and  the  principles  of  the  law  of 
nature  and  of  nations  which  are  properly  applicable. 

If  the  principles  and  the  corresponding  terms  adopted  by  the 
Revolutionary  Fathers  were  adopted  by  them  as  of  universal 
significance,  and  if  they  were  right,  must  we  not  apply  these 
principles  and  these  terms  to-day,  when  the  position  of 
America  is  reversed  and  she  stands  as  a  great  and  independent 
State  in  relationship  with  distant  communities  which  are  so 
circumstanced  that  they  can  never  participate  on  equal  terms  in 
the  institution  and  operation  of  her  government?  Must  not 
this  law  of  nature  and  of  nations  according  to  the  American 
System,  which  for  us  underlies  all  other  law  and  which  is  the 
Spirit  of  the  Constitution  itself,  determine  for  us  whether  or 
not  we  shall  continue  to  use  the  terms  "colony,"  or  "depend- 
ence," or  "empire"  ? 

If  we  must  admit  as  Americans  a  universal  right  of  free 
statehood,  is  it  proper  to  call  Hawaii,  Porto  Rico,  the  Philip- 
pines or  Guam  "colonies"?  They  are  inhabited  and  we  do  not 
propose  to  colonize  them.  If  they  are  free  states  in  union  with 
the  American  Union  as  the  Justiciar  State  and  form  with  it  a 


rut  gre:ater  American  union  37 

Greater  American  Union,  is  it  proper  to  call  them  "dependen- 
cies," which  may  imply  a  direct  legislative  power  over  them? 
And  if  the  American  Union  is  only  the  Justiciar  State  of  the 
whole  Greater  American  Union  of  Free  States,  composed  of  the 
American  Union  and  its  Territories  and  Insular  regions,  with 
power  of  final  decision  for  the  common  purposes  according  to 
the  law  of  nature  and  of  nations,  why  speak  of  this  as  "Em- 
pire," which  may  imply  absolute  power  and  a  denial  that  there 
exists  a  universal  law  of  nature  and  of  nations  protecting  alike 
the  rights  of  persons,  communities,  states  and  nations? 

But  it  will  be  said  the  conception  I  have  outlined  is  imprac- 
ticable. Judging  from  the  characteristics  of  human  nature,  a 
state  which  declares  itself  the  Justiciar  of  a  Union  of  free 
states  in  permanent  political  connection  with  it,  for  the  purpose 
of  discovering  and  applying  the  principles  of  the  law  of  nations 
in  the  just  conduct  of  the  common  affairs  of  the  Union,  is 
likely,  if  it  acts  as  a  true  Justiciar,  to  accomplish  much  more 
by  the  persuasive  effect  of  justice,  exercised  in  accordance  with 
an  overruling  law  of  nature  and  of  nations,  than  is  an  Em- 
peror-State by  the  issuing  of  edicts  based  on  a  claim  of  right 
to  be  the  supreme  legislative  pow«r  over  non-represented 
regions. 

Widely  scattered  free  states  which  are  in  political  connection 
or  union  rriust  necessarily  have  some  charge  of  their  own  de- 
fence, both  physically  and  commercially,  and  the  right  to  protect 
and  support  themselves  by  tariff  taxation  must  necessarily  in- 
clude the  right  to  lay  a  tariff  against  the  Central  State  as  well 
as  against  the  other  connected  states  and  against  foreign  states. 
All  these  conflicting  rights  must  be  harmonized  by  the  Central 
State,  and  it  must  at  the  same  time  provide  from  the  common 
resources  for  the  common  defence  and  welfare.  The  questions 
growing  out  of  such  relations  are  the  most  complicated  known 
to  politics.  It  seems  that  a  Justiciar  State,  acting  upon  the 
advice  of  properly  constituted  administrative  tribunals,  which 
habitually  act  judicially  and  whose  function  is  to  decide  all 
questions  according  to  law  and  justice,  is  much  more  likely  to 
solve  such  problems  by  investigation,  hearing  and  adjudication, 
than  is  a  Legislator  State  to  settle  them  by  edict,  or  than  is  an 


38  "coi.oNY,"-OR  "^ree;  state:"? 

Executive  State  to  procure  a  settlement  of  them  by  persuading 
the  parties  to  confer  and  compromise. 

Is  not  this  theory  the  true  via  media?  The  theory  of  the 
automatic  extension  of  the  constitution  of  a  state  over  its 
annexed  insular,  transmarine  and  transterranean  regions  which 
from  their  local  or  other  circumstances  can  never  equally  par- 
ticipate in  the  institution  and  operation  of  its  government,  in 
some  cases  protects  individual  rights,  but  it  takes  no  account 
of  the  right  of  free  statehood,  which  is  the  prime  instrumen- 
tality for  securing  these  rights.  The  theory  of  a  power  over 
these  regions  not  regulated  by  a  supreme  and  universal  law,  is 
a  theory  of  absolute  power  over  both  individuals  and  communi- 
ties in  these  regions.  The  theory  of  a  power  over  these  regions 
based  on  the  principles  of  the  law  of  nature  and  of  nations, 
granting  that  this  law  is  itself  based  on  the  divine  right  of 
human  equality,  protects  the  rights  of  persons,  of  communities, 
of  states  and  of  nations. 

This  theory  is  not  inconsistent  with  the  present  doctrine  of 
the  Supreme  Court  of  the  United  States.  It  is  an  application 
and  extension  of  that  doctrine.  To  say,  as  does  the  Supreme 
Court,  that  the  American  Union  has  power  over  its  annexed 
Insular  regions  restricted  by  "the  fundamental  principles 
formulated  in  the  Constitution,"  or  by  "the  applicable  provis- 
ions of  the  Constitution,"  is  to  say  that  the  power  of  the 
Union  over  these  regions  is  exercised  under  a  supreme  law 
which  is  not  the  Constitution  of  the  United  States;  for  "prin- 
ciples formulated  in  the  Constitution"  are  not  the  Constitution, 
and  to  say  that  "the  applicable  provisions"  of  the  Constitution 
are  the  Constitution  is  to  say  that  a  part  is  the  whole.  Such  a 
supreme  law  can  only  be  a  supreme  common  law,  and  a  com- 
mon law  can  be  supreme  over  a  group  of  scattered  states  only 
because  it  is  universal.  The  only  difference  between  this  doc- 
trine and  that  of  the  Supreme  Court  is  that  the  Court's  doc- 
trine protects  only  civil  rights,  while  this  protects  both  civil 
and  political  rights. 

By  adopting  this  theory  of  the  Reformation  and  the  Ameri- 
can Revolution,  may  not  the  American  System  extend  indefi- 
nitely without  danger  to  America  herself?    There  would  be  no 


the;  constitution  and  the  American  system        39 

domination,  no  subjection.  The  same  law  of  nature  and  of 
nations  would  extend  over  and  govern  throughout  the  whole 
Greater  American  Union.  This  Greater  American  Justiciary 
Union  would  be  but  a  logical  application  of  the  principles  un- 
derlying the  American  Legislative,  Executive  and  Judicial 
Union  formed  by  the  Constitution  of  the  United  States.  It 
would  not  be  the  Constitution  which  would  follow  the  flag  into 
the  regions  which  America  has  annexed  to  herself,  but  the  law 
of  nature  and  of  nations  according  to  the  American  System. 
If  the  Revolutionary  theory  as  I  have  interpreted  it  is  correct, 
this  law  of  nature  and  of  nations  is  everywhere  pervasive 
throughout  the  American  System  of  Free  States.  It  is  greater 
than  the  Constitution  of  the  United  States.  The  Constitution 
lives  in  so  far  as  it  truly  declares  the  law  of  nature  and  of 
nations  according  to  the  American  System.  If  the  Constitution 
is  interpreted  contrary  to  this  law,  as  authorizing  the  Union  to 
treat  its  annexed  regions  as  subjects  or  as  creating  a  hiatus  or 
a  conflict  between  the  powers  of  the  Central  and  the  Local 
Governments,  this  overruling  law  will  compel  a  new  interpreta- 
tion. On  this  theory  the  ''Territory  Clause"  of  the  Constitu- 
tion recognizes  the  law  of  nature  and  of  nations  as  determining 
the  relationship  between  the  American  Union  and  the  Insular 
regions — ''needful"  rules  and  regulations  being  those  which  are 
adapted  to  accomplish  the  end  desired  and  which  are  in  ac- 
cordance with  the  principles  of  the  law  of  nature  and  of  na- 
tions as  declared  in  the  Declaration  of  Independence. 

How  can  such  a  theory  endanger  the  Republic?  It  will  re- 
quire some  new  institutions,  no  doubt,  but  they  will  be  institu- 
tions in  line  with  republican  ideas  and  ideals,  for  they  will  all 
be  institutions  for  discovering  and  applying  the  principles  of 
the  common  law.  We  shall  only  have  to  enlarge  our  concep- 
tion of  the  common  law,  by  adding  to  the  definition  of  Coke, 
and  saying  that  it  is  "the  perfection  of  reason  and  revelation." 

Out  of  this  theory  of  a  universal  common  law  of  nations 
have  emerged  the  science  of  the  Law  of  the  State,  which  deals 
with  the  internal  relations  of  states,  and  the  science  of  Inter- 
national Law,  which  deals  with  the  temporary  relations  be- 
tween independent  States.    Why  out  of  the  same  theory  should 


40  "COI.ONY,"-OR   ''FREE  STATE"? 

there  not  emerge  a  science  of  the  Law  of  Connections  and 
Unions  of  States,  based  on  the  proposition  that  free  statehood 
is  the  normal  form  of  all  community  life  and  the  right  of  all 
communities  within  proper  limits  on  the  surface  of  the  earth, 
and  which  will  deal  with  the  permanent  relations  between  free 
states,  whether  independent  or  not, — a  science  which  will  oc- 
cupy the  wide  field  of  human  relationships  which  lies  between 
that  now  occupied  by  the  science  of  the  Law  of  the  State  and 
that  now  occupied  by  the  science  of  International  Law  ? 

To  those  who  regard  all  law  as  an  aggregate  of  eternal  and 
universal  principles  inhering  in  the  nature  of  things,  which  are 
discoverable  by  man  through  revelation  and  reason,  and  who 
therefore  regard  all  governmental  action  as  the  ascertainment 
and  application  of  these  principles,  the  conception  of  a  common 
and  universal  Law  of  Connections  and  Unions  of  Free  States 
and  that  of  a  common  and  universal  International  Law,  are 
equally  without  difficulty.  To  those  who  regard  all  law  as  an 
act  of  human  will  supported  by  force,  the  conception  of  a  com- 
mon and  universal  Law  of  Connections  and  Unions  of  Free 
States  and  that  of  a  common  and  universal  International  Law, 
are  equally  impossible;  and  indeed  these  persons  are  logically 
obliged  to  deny  the  existence  of  any  common  law  of  any  kind. 
To  those  who  occupy  the  middle  ground  and  regard  all  law 
as  in  one  aspect  the  ascertainment  and  application  of  eternal 
principles,  and  in  another  aspect  an  act  of  human  will  sup- 
ported by  force,  the  conception  of  a  common  and  universal 
Law  of  Connections  and  Unions  of  Free  States  is  less  difficult 
than  that  of  a  common  and  universal  International  Law,  for 
the  former  implies  a  Justiciar  State  which  is  capable  of  en- 
forcing its  decisions  and  dispositions,  while  the  latter  implies 
the  non-existence  of  any  political  power  capable  of  enforcing 
the  action  agreed  or  decided  upon. 

Fortunately,  there  is  every  evidence  that  at  the  present  time 
this  narrow  political  sect  who  believe  that  law  is  only  a  human 
edict  supported  by  physical  force, — this  sect  which  had  its 
origin  in  the  dark  decades  of  the  nineteenth  century  when  the 
materialistic  philosophy  prevailed, — is  dying  out,  under  the  in- 
fluence of  a  general  renaissance.     There  are,  it  is  to  be  be- 


INTERSTATE  ARBITRATION  4I 

lieved,  many  who  will  be  ready  and  willing  to  accept  as  true 
the  statement,  which  every  student  of  political  history  must 
admit  to  be  true,  that  the  philosophy  of  the  American  Revolu- 
tion was  a  religious  philosophy.  It  is  indeed  perhaps  not  too 
much  to  say  that  the  period  of  the  American  Revolution  was 
the  period  in  which  both  political  and  religious  thinking 
reached  the  highest  point,  and  that  there  is  no  question  of  gov- 
ernment which  has  since  arisen  which  was  not  either  solved 
by  the  Revolutionary  statesmen  or  put  in  the  process  of 
solution. 

The  political  philosophy  of  the  American  Revolution  has 
long  been  confused  with  that  of  the  French  Revolution.  As 
matter  of  fact,  they  stand  at  opposite  poles.  Our  philosophy 
was  religious,  the  French  non-religious.  America  had  been 
peacefully  assimilating,  for  a  century  and  a  half,  the  doctrines 
of  the  Reformation.  France  had  been  held  for  two  centuries 
and  a  half  in  a  condition  of  medisevalism,  and  the  principles  of 
the  Reformation  had  little  hold  among  the  people.  When 
the  Americans  spoke,  it  was  with  the  calm  wisdom  of  free- 
men ;  when  the  French  spoke,  it  was  with  the  folly  and  excess 
of  intellectual  and  spiritual  slaves  who  had  suddenly  emanci- 
pated themselves.  To  the  Americans,  to  whom  government 
was  the  expression  of  the  just  public  sentiment,  government, 
equally  with  religion,  was  a  necessary  good;  to  the  French,  to 
whom  government  was  the  expression  of  the  will  of  the  ma- 
jority, whether  just  or  unjust,  government  was  a  necessary 
evil  and  religion  an  unnecessary  evil.  The  French  Revolution 
made  itself  felt,  even  in  America,  for  a  century.  Till  within 
recent  years,  its  principles  have  obscured,  though  they  have 
never  wholly  eclipsed,  the  principles  of  the  American  Revolu- 
tion. But  now  there  seems  reason  to  believe  that  the  French 
Revolution  has  spent  its  force,  and  that  the  influence  of  the 
American  Revolution  is  growing  daily  stronger.  Signs  of  this 
are  the  councils  and  conferences  which  are  steadily  increasing 
in  number  and  in  power,  on  the  subject  of  arbitration  as  the 
peaceful  means  of  settling  questions  growing  out  of  the  rela- 
tions of  communities,  of  states  and  of  nations.  Arbitration, 
whether  between  persons  or  between  communities,  states  and 


42  "coivONY,"-oR  ''fr^e:  state"? 

nations,  implies  a  universal  and  common  law.  Peace  confer- 
ences can,  it  would  seem,  have  no  reasonable  purpose  and  can 
hope  to  accomplish  no  permanent  result,  except  as  they  at- 
tempt to  substitute  a  universal  and  common  law,  supported 
by  the  public  sentiment  of  the  civilized  world,  for  human  edicts 
founded  on  human  will  and  supported  by  physical  force.  The 
American  System  is  but  the  establishment  of  interstate  and 
international  arbitration  as  the  common  and  usual  course  of 
governmental  action  instead  of  as  a  voluntary  or  spasmodic 
manifestation  of  governmental  will. 

Only  on  the  assumption  of  the  existence  of  this  universal 
common  law  can  the  relations  between  us  and  our  Insular 
brethren  be  relations  under  law,  for  a  written  constitution 
between  us  and  them  is  impossible.  We  realize,  as  Americans, 
that  somehow  these  relations  must  be  under  law  if  they  are  to 
be  according  to  the  American  System,  for  we  know  that  there 
is  no  liberty  except  under  law,  and  that  the  American  System 
has,  for  its  sole  object,  human  liberty. 

If  we  are  right,  the  American  people,  in  rejecting,  as  they 
have,  the  European  terms  ''colony,"  "dependence"  and  "em- 
pire," and  the  theory  which  these  terms  symbolize,  have  been 
true  to  the  American  System.  In  substituting  for  these  terms 
the  American  terms,  "free  state,"  "just  connection"  and 
"union"  and  the  American  theory  which  these  terms  symbolize, 
it  is  not  necessary  for  us  to  alter  in  the  least  our  established 
views  concerning  the  Constitution  as  the  supreme  law  of  the 
Union.  It  is  only  necessary  for  us  to  realize  that  the  Constitu- 
tion is  itself  but  one  application  of  the  great  principles  of  the 
American  System  which,  as  the  Supreme  Court  says,  are 
"formulated"  in  it,  and  to  proceed,  by  a  new  formulation  or  by 
adjudication,  to  apply  these  principles  outside  the  present 
Union  wherever  American  jurisdiction  extends,  in  the  confi- 
dent belief  that  they  can  be  applied  universally,  and  that, 
wherever  applied,  they  will  bring  the  blessings  of  true  liberty. 


'V'^  OP  THE 


APPENDIX 

THE  AMERICAN  SYSTEM 
The:  Annunciation  of  thk  Ame:rican  System 

"When  in  the  course  of  human  events,  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  which  have  con- 
nected them  with  another,  and  to  assume,  among  the  powers 
of  the  earth,  the  separate  and  equal  station  to  which  the  laws 
of  Nature  and  of  Nature's  God  entitle  them,  a  decent  respect 
to  the  opinions  of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them  to  the  separation: — 

"We  hold  these  truths  to  be  self-evident:  That  all  men  are 
created  equal;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights,  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness ;  that  to  secure  these  rights,  gov- 
ernments are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed;  that  whenever  any  form  of 
government  becomes  destructive  of  these  ends,  it  is  the  right  of 
the  people  to  alter  or  to  abolish  it,  and  to  institute  new  govern- 
ment, laying  its  foundation  on  such  principles  and  organizing 
its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to 
effect  their  safety  and  happiness. 

Hs  *  ^{  Hi  Jj:  *  * 

"We,  therefore,  the  representatives  of  the  United  States  of 
America,  in  General  Congress  assembled,  appealing  to  the 
Supreme  Judge  of  the  World  for  the  rectitude  of  our  inten- 
tions do,  in  the  name,  and  by  the  authority  of  the  good  people 
of  these  Colonies,  solemnly  publish  and  declare,  That  these 
United  Colonies  are,  and  of  right  ought  to  be.  Free  and  In- 
dependent States ;  that  they  are  absolved  from  all  allegiance  to 
the  British  Crown,  and  that  all  political  connection  between 
them  and  the  State  of  Great  Britain  is,  and  ought  to  be,  totally 
dissolved ;  and  that,  as  Free  and  Independent  States,  they  have 
full  power  to  levy  war,  conclude  peace,  contract  alliances, 
establish  commerce,  and  to  do  all  other  acts  and  things  which 
Independent  States  may  of  right  do.  And,  for  the  support  of 
this  Declaration,  with  a  firm  reliance  on  the  protection  of 
Divine  Providence,  we  mutually  pledge  to  each  other  our  lives, 
our  fortunes  and  our  sacred  honor." 

The  Continental  Congress.     Declaration  of  Independ- 
ence of  July  4,  1776. 

(43) 


44  appendix 

The  Adoption  of  the  American  System  by  the  American 
Union  in  its  Constitution,  as  Applying  to  its  External 
Justiciary  Relations. 

"We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  Union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America.    *    *    * 

"The  Executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.    *    *    * 

"The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.     *     *     * 

"The  Judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  Courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish.  *  *  *  The 
Judicial  power  shall  extend  to  all  cases  in  law  and  equity,  aris- 
ing under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority." 
The  Constitutional  Convention.  The  Constitution  of 
the  United  States,  of  September  17,  1787. 

The  American  System  Differentiated  from  the  European 
BY  President  Washington. 

"Of  all  the  dispositions  and  habits  which  lead  to  political 
prosperity,  religion  and  morality  are  indispensable  supports. 
In  vain  would  that  man  claim  the  tribute  of  patriotism  who 
should  labor  to  subvert  these  great  pillars  of  human  happiness 
— these  firmest  props  of  the  duties  of  men  and  citizens.  The 
mere  politician,  equally  with  the  pious  man,  ought  to  respect 
and  cherish  them.  A  volume  could  not  trace  all  their  connec- 
tions with  private  and  public  felicity.    *    *    * 

"Observe  good  faith  and  justice  toward  all  nations.  Culti- 
vate peace  and  harmony  with  all.  Religion  and  morality  enjoin 
this  conduct.  And  can  it  be  that  good  policy  does  not  equally 
enjoin  jt?    *     *     * 

"The  great  rule  of  conduct  for  us  in  regard  to  foreign 
nations  is,  in  extending  our  commercial  relations,  to  have  with 
them  as  little  political  connection  as  possible.    *    *    * 

"Europe  has  a  set  of  primary  interests  which  to  us  have  none 
or  a  very  remote  relation.  Hence  she  must  be  engaged  in  fre- 
quent controversies,  the  causes  of  which  are  essentially  foreign 
to  our  concerns.    Hence,  therefore,  it  must  be  unwise  in  us  to 


THIv   AMERICAN    SYSTEM  45 

implicate  ourselves  by  artificial  ties  in  the  ordinary  vicissitudes 
of  her  politics  or  the  ordinary  combinations  and  collisions  of 
her  friendships  or  enmities. 

"Our  detached  and  distant  situation  invites  and  enables  us 
to  pursue  a  different  course.  If  we  remain  one  people,  under 
an  efficient  government,  the  period  is  not  far  off  when  we  may 
defy  material  injury  from  external  annoyance;  when  we  may 
take  such  an  attitude  as  will  cause  the  neutrality  we  may  at  any 
time  resolve  upon  to  be  scrupulously  respected ;  when  belliger- 
ent nations,  under  the  impossibility  of  making  acquisitions 
upon  us,  will  not  lightly  hazard  the  giving  us  provocation; 
when  we  may  choose  peace  or  war,  as  our  interest,  guided  by 
justice,  shall  counsel. 

*'Why  forego  the  advantages  of  so  peculiar  a  situation? 
Why  quit  our  own  to  stand  upon  foreign  ground?  Why  by 
interweaving  our  destiny  with  that  of  any  part  of  Europe, 
entangle  our  peace  and  prosperity  in  the  toils  of  European 
ambition,  rivalship,  interest,  humor,  or  caprice? 

"It  is  our  true  policy  to  steer  clear  of  permanent  alliances 
with  any  portion  of  the  foreign  world." 

President  Washington.     Farewell  Address,  September 
17,  1796. 

The:  American  System  as  Defined  by  President  Jeeferson. 

"I  deem  the  essential  principles  of  our  government  [to  be]  : 
Equal  and  exact  justice  to  all  men,  of  whatever  state  or  per- 
suasion; peace,  commerce,  and  honest  friendship  with  all  na- 
tions, entangling  alliances  with  none ;  the  support  of  the  State 
Governments  in  all  their  rights,  as  the  most  competent  admin- 
istrations for  our  domestic  concerns  and  the  surest  bulwarks 
against  anti-republican  tendencies;  the  preservation  of  the 
General  Government  in  its  whole  constitutional  vigor,  as  the 
sheet-anchor  of  our  peace  at  home  and  safety  abroad." 

President  Jefferson,     First  Inaugural  Address,  March  4, 
1801. 

The  Extension  oe  the  European  System  to  the  Western 
Hemisphere  Declared  Incompatible  with  the  Ameri- 
can System,  by  President  Monroe. 

"The  political  system  of  the  Allied  Powers  is  essentially  dif- 
ferent *  *  *  from  that  of  America.  This  difference  pro- 
ceeds from  that  which  exists  in  their  respective  Governments; 
and  to  the  defence  of  our  own,  which  has  been  achieved  by  the 


46  APPENDIX 

loss  of  so  much  blood  and  treasure,  and  matured  by  the  wisdom 
of  their  most  enlightened  citizens,  and  under  which  we  have 
enjoyed  unexampled  felicity,  this  whole  nation  is  devoted.  We 
owe  it,  therefore,  to  candor  and  to  the  amicable  relations  ex- 
isting between  the  United  States  and  those  Powers,  to  declare 
that  we  should  consider  any  attempt  on  their  part  to  extend 
their  system  to  any  portion  of  this  hemisphere  as  dangerous  to 
our  peace  and  safety.     *     *     * 

*'It  is  impossible  that  the  Allied  Powers  should  extend  their 
political  system  to  any  portion  of  either  continent  without  en- 
dangering our  peace  and  happiness." 

President  Monroe.     Annual  Message  of  December  2, 
1823. 

Thk  American  System  Declared  to  Have  Extended  Itself 
TO  THE  Whole  Western  Hemisphere,  by  President 
John  Quincy  Adams. 

"Among  the  inquiries  which  were  thought  entitled  to  con- 
sideration before  the  determination  was  taken  to  accept  the 
invitation  [to  the  proposed  Congress  of  the  American  Repub- 
lics at  Panama] ,  was  that  whether  the  measure  might  not  have 
a  tendency  to  change  the  policy,  hitherto  invariably  pursued  by 
the  United  States,  of  avoiding  all  entangling  alliances  and  all 
unnecessary  political  connections. 

"Mindful  of  the  advice  given  by  the  Father  of  our  Country 
in  his  Farewell  Address,  that  the  great  rule  of  conduct  for  us 
in  regard  to  foreign  nations  is,  in  extending  our  commercial 
relations,  to  have  with  them  as  little  political  connection  as  pos- 
sible, and  faithfully  adhering  to  the  spirit  of  that  admonition, 
I  can  not  overlook  the  reflection  that  the  counsel  of  Washing- 
ton in  that  instance,  like  all  counsels  of  wisdom,  was  founded 
upon  the  circumstances  in  which  our  country  and  the  world 
around  us  were  situated  at  the  time  when  it  was  given;  that 
the  reasons  assigned  by  him  for  his  advice  were  that  Europe, 
had  a  set  of  primary  interests  which  to  us  had  none  or  a  very 
remote  relation;  that  hence  she  must  be  engaged  in  frequent 
controversies,  the  causes  of  which  were  essentially  foreign  to 
our  concerns;  that  our  detached  and  distant  situation  invited 
and  enabled  us  to  pursue  a  different  course ;  that  by  our  union 
and  rapid  growth,  with  an  efficient  Government,  the  period 
was  not  far  distant  when  we  might  defy  material  injury  from 
external  annoyance,  when  we  might  take  such  an  attitude  as 
would  cause  our  neutrality  to  be  respected,  and,  with  reference 
to  belligerent  nations,  might  choose  peace  or  war,  as  our  in- 
terests, guided  by  justice,  should  counsel. 


THE  AMERICAN  SYSTEM  47 

"Compare  our  situation  and  the  circumstances  of  that  time 
with  those  of  the  present  day,  and  what,  from  the  very  words 
of  Washington  then,  would  be  his  counsels  to  his  countrymen 
now  ?  Europe  has  still  her  set  of  primary  interests,  with  which 
we  have  little  or  a  remote  relation.  Our  distant  and  detached 
situation  with  reference  to  Europe  remains  the  same.  But  we 
were  then  the  only  independent  nation  of  this  hemisphere,  and 
we  were  surrounded  by  European  colonies,  with  the  greater 
part  of  which  we  had  no  more  intercourse  than  with  the  in- 
habitants of  another  planet.  These  colonies  have  now  been 
transformed  into  eight  independent  nations,  extending  to  our 
very  borders,  seven  of  them  Republics  like  ourselves,  with  whom 
Vv'e  have  an  immensely  growing  commercial,  and  must  have, 
and  have  already,  important  political  connections;  with  refer- 
ence to  whom  our  situation  is  neither  distant  nor  detached ; 
whose  political  principles  and  systems  of  government,  congenial 
with  our  own,  must  and  will  have  an  action  and  counteraction 
upon  us  and  ours  to  which  we  cannot  be  indifferent  if  we 
would. 

"The  rapidity  of  our  growth,  and  the  consequent  increase  of 
our  strength,  has  more  than  realized  the  anticipations  of  this 
admirable  political  legacy.  Thirty  years  have  nearly  elapsed 
since  it  was  written,  and  in  the  interval  our  population,  our 
wealth,  our  territorial  extension,  our  power — physical  and 
moral — have  nearly  trebled.  Reasoning  upon  this  state  of 
things  from  the  sound  and  judicious  principles  of  Washington, 
must  we  not  say  that  the  period  which  he  predicted,  as  then 
not  far  off,  has  arrived ;  that  America  has  a  set  of  primary 
interests  which  have  none  or  a  remote  relation  to  Europe ;  that 
the  interference  of  Europe,  therefore,  in  those  concerns  should 
be  spontaneously  withheld  by  her  upon  the  same  principles  that 
we  have  never  interfered  with  hers,  and  that  if  she  should 
interfere,  as  she  may,  by  measures  which  may  have  a  great  and 
dangerous  recoil  upon  ourselves,  we  might  be  called,  in  de- 
fence of  our  altars  and  firesides,  to  take  an  attitude  which 
would  cause  our  neutrality  to  be  respected,  and  choose  peace  or 
war,  as  our  interest,  guided  by  justice,  should  counsel? 

"The  acceptance  of  this  invitation,  therefore,  far  from  con- 
flicting with  the  counsel  or  the  policy  of  Washington,  is  directly 
deducible  from  and  conformable  to  it.    Nor  is  it  less  conform- 
able to  the  views  of  my  immediate  predecessor,  as  declared  in 
his  Annual  Message  to  Congress  of  the  2d  December,  1823." 
President  John  Quincy  Adams.     Communication  to  the 
House  of  Representatives,  in  answer  to  their  Resolu- 
tion of  Inquiry,  regarding  the  proposed  Panama  Con- 
gress, March  15,  1826. 


48  A1>P^NDIX 

The;  American  People  Rededicated  to  the  Preservation 
OF  THE  American  System,  by  President  Lincoln,  at 
Gettysburg. 

"Four  score  and  seven  years  ago  our  fathers  brought  forth 
on  this  continent,  a  new  nation,  conceived  in  Liberty,  and 
dedicated  to  the  proposition  that  all  men  are  created  equal. 

"Now  we  are  engaged  in  a  great  civil  war,  testing  whether 
that  nation,  or  any  nation  so  conceived  and  so  dedicated,  can 
long  endure.  We  are  met  on  a  great  battlefield  of  that  war. 
We  have  come  to  dedicate  a  portion  of  that  field,  as  a  final  rest- 
ing-place for  those  who  here  gave  their  lives  that  the  nation 
might  live.  It  is  altogether  fitting  and  proper  that  we  should 
do  this. 

"But,  in  a  larger  sense,  we  can  not  dedicate — we  can  not 
consecrate — we  can  not  hallow — this  ground.  The  brave  men, 
living  and  dead,  who  struggled  here,  have  consecrated  it,  far 
above  our  poor  power  to  add  or  detract.  The  world  will  little 
note,  nor  long  remember,  what  we  say  here,  but  it  can  never  for- 
get what  they  did  here.  It  is  for  us  the  living,  rather,  to  be 
dedicated  here  to  the  unfinished  work  which  they  who  fought 
here  have  thus  far  so  nobly  advanced.  It  is  rather  for  us  to  be 
here  dedicated  to  the  great  task  remaining  before  us — that  from 
these  honored  dead  we  take  increased  devotion  to  that  cause  for 
which  they  gave  the  last  full  measure  of  devotion — that  we  here 
highly  resolve  that  these  dead  shall  not  have  died  in  vain,  that 
this  nation,  under  God,  shall  have  a  new  birth  of  freedom,  and 
that  government  of  the  people,  by  the  people,  for  the  people, 
shall  not  perish  from  the  earth." 

President  Lincoln.     Address  at  the  Dedication  of  the 
National  Cemetery  at  Gettysburg,  November  19,  1863. 

The  American  System  Applied  in  the  External  Jus- 
ticiary Relations  oe  the  American  Union,  by  President 

McKlNLEY. 

"In  order  to  facilitate  the  most  humane,  specific,  and  effective 
extension  of  authority  throughout  [the  Philippine  Islands],  and 
to  secure  with  the  least  possible  delay  the  benefits  of  a  wise  and 
generous  protection  of  life  and  property,  I  have  named  Jacob 
G.  Schurman,  Rear- Admiral  George  Dewey,  Major-General 
Elwell  S.  Otis,  Charles  Denby,  and  Dean  C.  Worcester  to  con- 
stitute a  Commission  to  aid  in  the  accomplishment  of  these  re- 
sults.    *     *     * 

"The  Commissioners  will  endeavor,  *  *  *  to  ascertain 
what  amelioration  in  the  condition  of  the  inhabitants  and  what 


THS  AMEJRICAN    SYSTEM  49 

Improvements  in  public  order  may  be  practicable,  and  for  this 
purpose  they  will  study  attentively  the  existing  social  and  politi- 
cal state  of  the  various  populations,  particularly  as  regards  the 
forms  of  local  government,  the  administration  of  justice,  the 
collection  of  customs  and  other  taxes,  the  means  of  transporta- 
tion, and  the  need  of  public  improvements. 

'"They  will  report  to  the  State  Department,  according  to  the 
forms  customary  or  hereafter  prescribed  for  transmitting  and 
preserving  such  communications,  the  results  of  their  observa- 
tions and  reflections,  and  will  recommend  such  Executive  action 
as  may  from  time  to  time  seem  to  them  wise  and  useful,   -s^   ^   * 

"It  is  my  desire  that  in  all  their  relations  with  the  inhabitants 
of  the  Islands,  the  Commissioners  exercise  due  respect  for  all 
the  ideals,  customs,  and  institutions  of  the  tribes  and  races 
which  compose  the  population,  emphasizing  upon  all  occasions 
the  just  and  beneficent  intentions  of  the  Government  of  the 
United  States. 

"It  is  also  my  wish  and  expectation  that  the  Commissioners 
may  be  received  in  a  manner  due  to  the  honored  and  authorized 
representatives  of  the  American  Republic,  duly  commissioned, 
on  account  of  their  knowledge,  skill  and  integrity,  as  bearers  of 
the  good  will,  the  protection,  and  the  richest  blessings  of  a 
liberating  rather  than  a  conquering  nation." 

President  McKinley.  Instructions  to  the  Secretary  of 
State  regarding  the  First  Philippine  Commission,  Jan- 
uary 20,  1899. 

The;  Definition  of  the  American  System,  as  Applied  Both 
TO  the  Internal  and  External  Relations  of  the  Ameri- 
can Union,  by  President  Roosevelt. 

"When  all  is  said  and  done,  the  rule  of  brotherhood  remains 
as  the  indispensable  prerequisite  to  success  in  the  kind  of  na- 
tional life  for  which  we  strive.  Each  man  must  work  for  him- 
self, and  unless  he  so  works  no  outside  help  can  avail  him ;  but 
each  man  must  remember  also  that  he  is  indeed  his  brother's 
keeper,  and  that  while  no  man  who  refuses  to  walk  can  be 
carried  with  advantage  to  himself  or  any  one  else,  yet  that  each 
at  times  stumbles  or  halts,  that  each  at  times  needs  to  have  the 
helping  hand  outstretched  to  him.  To  be  permanently  effective, 
aid  must  always  take  the  form  of  helping  a  man  to  help  him- 
self;  and  we  can  all  best  help  ourselves  by  joining  together  in 
the  work  that  is  of  common  interest  to  all.    *    *    * 

"It  is 'no  light  task  for  a  nation  to  achieve  the  temperamental 
qualities  without  which  the  institutions  of  free  government  are 
4 


50  APPENDIX 

but  an  empty  mockery.  Our  people  are  now  successfully  gov- 
erning themselves,  because  for  more  than  a  thousand  years  they 
have  been  slowly  fitting  themselves,  sometimes  consciously, 
sometimes  unconsciously,  toward  this  end.  What  has  taken 
us  thirty  generations  to  achieve,  we  cannot  expect  to  see  another 
race  accomplish  out  of  hand,  especially  when  large  portions  of 
that  race  start  very  far  behind  the  point  which  our  ancestors 
had  reached  even  thirty  generations  ago.  In  dealing  with  the 
Philippine  people  we  must  show  both  patience  and  strength, 
forbearance  and  steadfast  resolution.  Our  aim  is  high.  We 
do  not  desire  to  do  for  the  islanders  merely  what  has  elsewhere 
been  done  for  tropic  peoples  by  even  the  best  foreign  govern- 
ments. We  hope  to  do  for  them  what  has  never  before  been 
done  for  any  people  of  the  tropics — to  make  them  fit  for  self- 
government  after  the  fashion  of  the  really  free  nations." 

President  Roosevelt.     First  Message,  December  3,  1901. 


THE  QUESTION  OF  TERMINOLOGY 


THE  QUESTION  OF  TERMINOLOGY 

Mr.  President,  Members  of  the  Association  and  Section,  Ladies 
and  Gentlemen: 

You  have  heard  ably  discussed  certain  questions  which  arise 
out  of  the  relationship  between  the  American  Union  and  the 
annexed  Insular  regions,  viewed  in  its  sociological  and  economic 
aspect.  I  now  ask  your  attention  to  a  question  of  immediate 
interest  and  importance  growing  out  of  this  relationship  viewed 
in  its  political,  that  is  to  say,  its  legal  aspect.  This  question, 
which  the  Committee  on  Arrangements  has  called  "The  Ques- 
tion of  Terminology,"  is :  What  are  the  correct  terms  to  use  in 
describing  the  political  and  legal  relationship  between  the 
American  Union  and  its  distant  annexed  regions,  assuming 
that  this  relationship  is  to  be  permanent  and  is  to  be  on  terms 
which  are  just  to  all  parties? 

More  specifically,  the  question  which  I  shall  discuss  will  be, 
whether  we,  as  Americans,  ought,  according  to  American  prin- 
ciples, to  use,  in  our  political  and  legal  language,  the  terms 
"colony,"  "dependence,"  and  "empire,"  or  whether  we  ought, 
according  to  those  principles,  to  substitute  for  the  term 
"colony,"  the  term  "free  state,"  for  "dependence,"  "just  con- 
nection," and  for  "empire,"  "union." 

It  is  needless  to  say  that  I  shall  accept  the  decisions  of  the 
Supreme  Court  of  the  United  States  as  final  in  regard  to  all 
the  matters  adjudicated  in  them.  But  the  Supreme  Court  has 
jurisdiction  only  for  the  purpose  of  determining  the  rights  of 
individuals.  The  political  relations  between  the  Union  and  the 
Insular  regions,  it  determines  only  so  far  as  may  be  necessary 
to  ascertain  individual  rights.  Its  present  doctrine — that  the 
American  Union  has  power  over  the  Insular  regions  subject  to 
"fundamental  principles  formulated  in  the  Constitution,"  or 
subject  to  "the  applicable  provisions  of  the  Constitution,"  pro- 

(53) 


54  the:  quejstion  o^  te:rminoi,ogy 

tects  the  civil  rights  of  individuals,  but  under  it  the  power  of 
the  Union  for  political  purposes  remains  absolute.  The  propo- 
sition which  I  shall  offer  for  your  judgment,  will,  I  believe, 
not  only  not  be  in  conflict  with  the  propositions  laid  down  by 
the  Supreme  Court,  but  will  give  a  reason  why  they  are  right. 
It  will,  too,  I  believe,  give  a  reasonable  basis  for  our  holding 
that  the  power  of  the  American  Union  over  the  Insular  regions, 
while  ample  for  the  maintenance  of  a  just  and  proper  perma- 
nent relationship  with  them  under  our  control,  is  not  absolute 
even  as  respects  their  political  rights. 

I  have  said  that  I  shall  discuss  this  question  upon  American 
principles.  I  shall  not  base  myself  on  the  Constitution  of  the 
United  States,  though  I  shall  try  to  show  the  relation  of  that 
document  to  the  question,  as  I  understand  it.  I  shall  assume  it 
to  be  settled  by  the  decisions  of  the  Supreme  Court, — as  it  seems 
clearly  to  be, — that  with  the  exception  of  the  ''Territory''  clause 
of  that  instrument,  it  is,  and  of  right  ought  to  be,  the  Constitu- 
tion of  the  thirteen  original  States  of  the  American  Union  and 
of  the  other  States  which  they  have  admitted  into  their  Union, 
and  of  no  other  States  or  communities;  and  that  therefore  it 
does  not  extend  of  its  own  force  outside  the  American  Union  in 
any  constitutional  or  legal  sense,  but  only  in  a  metaphorical 
sense — this  being  as  I  understand  it,  the  meaning  of  the  Court 
when  they  hold,  as  they  do,  that,  though  the  "Territory  clause" 
is  of  present  and  universal  significance  as  respects  all  the  re- 
gions annexed  to  the  Union,  yet,  with  this  exception,  only  "the 
applicable  provisions  of  the  Constitution"  or  "the  fundamental 
principles  formulated  in  the  Constitution"  are  in  force  in  the 
annexed  regions.  "Extensions,"  so-called,  of  the  Constitution 
by  Act  of  Congress,  are  of  course  mere  Acts  of  Congress,  and 
whether  such  metaphorical  "extensions"  are  permanent  will 
depend  upon  the  terms  and  conditions  of  the  "extension." 

But  though  I  shall  not  base  myself  on  the  Constitution  of 
the  United  States,  I  shall  nevertheless  base  myself  on  a  great 
American  Document,  which  preceded  the  Constitution  as  a 
statement  of  American  principles,  and  which  is  so  far  from 
being  inconsistent  with  it  that  the  Democratic  party,  in  its 


TH^  SPIRIT  01^  the;  constitution  55 

platform  of  1900,  called  it  "the  Spirit  of  the  Constitution" — I 
refer  to  the  Declaration  of  Independence.  It  is  the  American 
principles  set  forth  in  that  document  which  I  shall  try  to  dis- 
cover. If  I  shall  be  adjudged  to  have  rightly  interpreted  that 
instrument,  it  will  follow  that  we  ought  to  substitute,  in  our 
political  and  legal  language,  for  the  term  "colony,"  the  term 
"free  state,"  for  "dependence,^'  "just  connection,"  and  for  "em- 
pire," "union."  In  making  such  substitution,  however,  it  will 
be  necessary  to  give  to  the  terms  "free  state"  and  "union,"  a 
scientific  meaning  which  will  differ  from  that  which  they  now 
have  in  the  popular  mind,  but  which  will,  I  believe,  be  the  same 
as  was  given  to  these  terms  by  the  Revolutionary  statesmen. 

I  shall  not  allow  myself  to  be  embarrassed  by  the  fact  that  in 
my  first  pubHshed  writing  I  used  the  terms  "colony,"  "de- 
pendence" and  "empire;"  for  at  the  same  time  that  I  used 
these  terms,  I  based  myself  on  principles  which  were  those  of 
free  statehood,  just  connection  and  union,  to  which  I  adhere  to 
this  day. 

Taking  the  Declaration  of  Independence,  therefore,  as  the 
exposition  of  the  fundamental  principles  on  which  all  American 
political  theory  is  based,  and  to  which  all  American  policy  must 
conform,  let  me  state  briefly  the  general  meaning  and  purpose 
of  this  instrument,  as  I  understand  it. 

As  a  result  of  the  discussion  for  twelve  years  preceding  the 
Declaration,  the  doctrine  of  the  extension  of  the  British  Con- 
stitution to  the  American  Colonies,  which  from  their  situation, 
could  never  be  represented  on  equal  terms  in  Parliament,  was 
found  to  be  useless  for  the  protection  of  American  rights,  politi- 
cal or  civil ;  and  the  doctrine  that  their  rights  were  dependent 
on  the  Colonial  Charters  was  found  to  be  inadequate,  for 
these  Charters,  while  protecting  the  civil  rights  of  the  Ameri- 
cans to  some  extent,  proceeded  on  the  theory  that  they  held  all 
their  political  rights  at  the  will  or  whim  of  Great  Britain.  The 
Americans  felt  and  knew  that  they  were  entitled  to  political,  as 
well  as  civil  rights,  and  they  all  firmly  believed  that  each  so- 
called  "colony"  was  a  free  state  and  subject  to  no  external 
control  beyond  what  was  necessary  to  preserve  their  relation- 


56  THE  QUESTION   OF  TERMINOLOGY 

ship  with  Great  Britain  on  just  terms  to  all  the  parties.  The 
only  question  which  the  Americans  discussed,  as  soon  as  they 
comprehended  the  whole  situation,  was,  Why  was  each  so- 
called  "colony"  a  free  state  and  why  had  it  always  been  such? 
The  Declaration  of  Independence,  as  I  understand  it,  gave  to 
the  world  their  solution  of  this  problem.  Their  answer,  as  I 
understand  it,  was,  that  the  American  Colonies  were  and  always 
had  been  free  states,  because  their  relations  with  the  State  of 
Great  Britain  were  not  under  the  British  Constitution  and  were 
not  wholly  under  the  Colonial  Charters,  but  were  under  a  su- 
preme and  universal  common  law,  which  governs  the 
relations  between  men,  communities,  bodies  corporate,  states 
and  nations,  and  which  they  called  in  the  Declaration  "the  Law 
of  Nature  and  of  Nature's  God,"  according  to  which  every 
community  on  the  earth's  surface,  within  reasonable  limits  for 
the  formation  and  execution  of  a  just  public  sentiment,  is  enti- 
tled to  be  a  free  state, — that  is,  to  be  free  from  external  control, 
in  executing  its  just  public  sentiment,  except  so  far  as  may  be 
necessary  to  enable  it  to  conform  to  the  terms  of  its  just  con- 
nections with  other  free  states.  This  doctrine  of  free  statehood 
as  a  universal  right  is,  as  I  understand  it,  the  central  idea  of  the 
Declaration. 

Assuming  this  to  be  the  central  idea,  let  us  see  how  this  idea 
is  reached;  and  for  that  purpose,  let  us  notice  the  exact  lan- 
guage of  the  Declaration.    The  first  paragraph  reads : 

"When  in  the  course  of  human  events,  it  becomes  nec- 
essary for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to  assume, 
among  the  powers  of  the  earth,  the  separate  and  equal 
station  to  which  the  laws  of  Nature  and  of  Nature's 
God  entitle  them,  a  decent  respect  to  the  opinions  of 
mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation." 

The  "causes  of  separation"  are  prefaced  by  a  number  of 
propositions  determining  the  nature  of  the  "political  bands"  by 
which  one  people  may  be  "connected  with"  another.  These 
propositions  are  all  rules  of  human  conduct,  and  are  therefore 


THE  SELl^-EVIDENT  TRUTHS  57 

principles  of  law,  though  they  are  called  "self-evident  truths." 
This  part  of  the  Declaration  reads : 

"We  hold  these  truths  to  be  self-evident :  That  all  men 
are  created  equal;  that  they  are  endowed  by  their 
Creator  with  certain  unalienable  rights,  that  among  these 
are  life,  liberty  and  the  pursuit  of  happiness;  that  to 
secure  these  rights,  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of  the 
governed;  that  whenever  any  form  of  government  be- 
comes destructive  of  these  ends,  it  is  the  right  of  the 
people  to  alter  or  to  abolish  it,  and  to  institute  new  gov- 
ernment, laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form  as  to  them  shall  seem 
most  likely  to  effect  their  safety  and  happiness." 

The  conception  of  the  universal  right  of  free  statehood  is 
reached,  in  the  Declaration,  through  a  series  of  three  proposi- 
tions, each  stated  to  be  self-evident,  and  yet  all  forming  a  se- 
quence. The  basal  proposition  is,  that  "all  men  are  created 
equal."  Rufus  Choate  and  John  James  Ingalls  have  declared 
this  proposition  and  the  succeeding  one  that  "all  men  are  en- 
dowed by  their  Creator  with  certain  unalienable  rights,  that 
among  these  are  life,  liberty  and  the  pursuit  of  happiness,"  to  be 
"glittering  generalities."  Abraham  Lincoln,  on  the  other  hand, 
in  his  speech  at  Gettysburg,  at  the  most  solemn  and  stirring 
moment  in  the  country's  history,  declared  that  the  proposition 
that  all  men  are  created  equal  was  the  foundation-idea  of  the 
nation,  to  which  it  was  dedicated  by  the  Fathers. 

The  doctrine  of  equality  arising  from  the  common  creation  of 
all  men  as  the  spiritual  offspring  of  a  common  Creator,  was  the 
doctrine  of  the  Reformation  in  its  broadest  form,  as  declared  by 
Penn.  Taking  into  consideration  the  religious  character  of  the 
Americans,  as  well  as  the  learning  and  acumen  of  that  most 
remarkable  body  of  men  who  constituted  the  Continental  Con- 
gress,it  seems  not  only  not  improbable, but  probable,and  indeed 
necessary  to  conclude,  that  the  proposition  that  "all  men  are 
created  equal"  was  intended  to  be  the  epitome  of  the  doctrine 
of  the  Reformation,  as  that  doctrine  was  broadened  by  the  in- 
fluence of  Penn  and  his  followers.     As  the  Governments  of 


58  THE  QUESTION   OE  TERMINOLOGY 

Europe  were  at  that  time  acting  on  the  poHtical  philosophy  of 
feudalism  and  medisevalism,  which  in  its  last  analysis  was  based 
on  the  proposition  that  all  men  are  created  unequal,  or  that 
some  are  created  equal  and  some  unequal,  the  Declaration,  if  it 
be  true  that  it  based  the  American  political  philosophy  upon 
the  broadest  doctrine  of  the  Reformation,  announced  an  Ameri- 
can System  as  opposed  to  the  European  System. 

From  the  doctrine  of  equality  arising  from  the  common  crea- 
tion of  all  men  by  a  personal  Creator  to  whom  all  were  equally 
related,  it  is  declared  by  the  Declaration  to  follow  as  a  "self- 
evident"  truth  that  there  are  certain  rights,  which  are  attached 
to  all  men  by  endowment  of  the  Creator  as  being  the  correla- 
tive of  the  unalienable  needs  of  all  men,  and  which  inasmuch  as 
they  arise  from  the  universal  limitations  which  the  Creator  has 
imposed,  are  as  unalienable  as  the  needs  themselves.  These 
unalienable  rights  are  declared  to  be  the  rights  of  life,  liberty 
and  the  pursuit  of  happiness. 

The  doctrine  of  unalienable  rights,  necessarily  supposes  a 
universal  law,  for  the  conception  of  law  must  precede  the  con- 
ception of  right.  This  law,  as  conceived  of  by  the  Declaration 
is  a  common  and  universal  law.  In  the  first  part  of  the  pre- 
amble this  universal  common  law  is  spoken  of  as  "the  law  of 
Nature  and  of  Nature's  God."  Inasmuch  as  the  rights  claimed 
are  those  which  depend  for  their  existence  upon  revelation  as 
well  as  reason,  it  is  evident  that  this  common  and  universal  law 
to  which  the  Declaration  appeals,  is  the  "law  of  nature  and  of 
nations,"  of  the  scholars  of  the  Reformation,  which  was  con- 
ceived of  as  based  on  revelation  and  reason,  and  as  governing 
every  relationship  of  men,  of  bodies  corporate,  of  communities, 
of  states  and  of  nations.  Out  of  this  conception  there  had 
already  grown  that  great  division  of  the  law  which  deals  with 
the  temporary  relations  between  independent  states,  which  we 
now  call  International  Law. 

Having  thus  established  the  doctrine  of  unalienable  rights, 
based  on  a  universal  common  law  of  nature  and  of  nations, 
which  all  men,  all  bodies  corporate,  all  communities,  all  govern- 
ments, all  states  and  all  nations  were  bound  to  enforce,  the 


THE   CONSJ^NT   01^   THS:   GOVERNED  59 

Declaration  proceeds  to  a  consideration  of  the  forms,  methods 
and  instrumentalities  by  which  these  unalienable  rights  are  to 
be  secured. 

It  declares  that  the  primary  instrumentality  by  which  these 
rights  are  secured,  are  governments  "deriving  their  just  powers 
from  the  consent  of  the  governed."  Contrary  to  the  usual  in- 
terpretation, the  Declaration  does  not  state  that  government  is 
the  expression  of  the  will  of  the  majority.  Governments,  it  is 
declared,  are  instituted  to  "secure"  the  "unalienable  rights"  of 
individuals.  The  will  of  the  majority,  of  course,  is  quite  as 
likely  to  destroy  as  to  secure  the  unalienable  rights  of  individ- 
uals. Moreover,  the  Declaration  says  merely  that  "govern- 
ments are  instituted  among  men" — not  that  men  universally  in- 
stitute their  own  governments.  The  whole  statement  that  the 
governments  which  are  instituted  among  men  to  secure  the 
unalienable  rights  of  individuals,  universally  "derive  their  just 
powers  from  the  consent  of  the  governed,"  is  inconsistent  with 
the  proposition  that  governments  are  the  expression  of  the  mere 
will  of  the  majority,  for  it  is  only  their  "just  powers"  that  gov- 
ernments "derive"  from  "the  consent  of  the  governed,"  and  the 
will  of  the  majority  may  be  just  or  unjust.  The  expression 
"deriving  their  just  powers  from  the  consent  of  the  governed" 
seems  to  me  most  probably  to  be  an  epitome  and  summary  of 
the  two  fundamental  propositions  of  the  law  of  agency — 
"Ohligatio  mandati  consensu  contrahentium  consistit,  a  free 
translation  of  which  is  "The  powers  of  an  agent  are  derived 
from  the  consent  of  the  contracting  parties,"  and  Rei  turpis 
nullum  mandatum  est,  a  free  translation  of  which  is  "No  agent 
can  have  unjust  powers."  On  this  interpretation  the  meaning 
of  the  whole  sentence  "that  to  secure  these  rights,  governments 
are  instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed,"  is,  it  would  seem,  that  there  is  a 
universal  right  of  all  communities  to  have  a  government  of  a 
kind  best  adapted  for  the  securing  of  the  unalienable  rights  of 
individuals,  instituted  either  by  their  own  selection  or  by  the 
appointment  of  an  external  power,  and  that  all  governments, 
however  instituted,  are  universally  the  agents  of  the  governed 


6o  THE    QUESTION    O^    TERMINOIyOGY 

to  secure  these  rights.  Government  is  thus  declared  not  to  be 
the  expression  of  the  will  of  the  majority,  but  the  application 
of  the  just  public  sentiment  justly  ascertained  through  forms 
best  adapted  for  this  purpose. 

The  free  statehood  which  is  claimed  in  the  concluding  part 
of  the  Declaration  to  be  the  right  of  the  Colonies  is  by  the 
Declaration  based  on  the  philosophical  declarations  of  the  pre- 
amble. The  particular  proposition  which  bears  upon  the  right 
of  free  statehood  is  evidently  the  one  which  declares  that,  "to 
secure  these  [unalienable]  rights  [of  individuals],  governments 
are  instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed."  The  intermediate  propositions,  as 
the  result  of  which  the  universal  right  of  free  statehood  follows 
from  this  proposition,  are,  it  would  seem,  these :  If  government 
is  the  doing  of  justice  according  to  public  sentiment,  govern- 
ment is  the  expression  and  application  of  a  spiritually  and  in- 
tellectually educated  public  sentiment,  since,  although  a  rudi- 
mentary knowledge  of  what  is  just  is  implanted  in  every  human 
being,  a»  full  knowledge  of  what  is  just  comes  only  after  a 
course  of  spiritual  and  intellectual  education.  Hence  it  follows 
that  the  forms  and  methods  of  government  should  be  such  as 
are  adapted  to  such  spiritual  and  intellectual  education.  Educa- 
tion takes  place  by  direct  personal  contact,  and  can  be  best  ac- 
complished only  through  the  establishment  of  permanent  groups 
of  individuals  who  are  all  under  the  same  conditions.  The 
formation  and  expression  of  a  just  public  sentiment,  therefore, 
requires  the  establishment  of  permanent  groups  of  persons, 
more  or  less  free  from  any  external  control  which  interferes 
with  their  rightful  action,  under  a  leadership  which  makes  for 
their  spiritual  and  intellectual  education  in  justice.  Such  per- 
manent groups  within  territorial  limits  of  suitable  size  for  de- 
veloping and  expressing  a  just  public  sentiment,  are  free  states. 
Territorial  divisions  of  persons  set  apart  for  the  purpose  of 
convenience  in  determining  the  local  public  sentiment,  regard- 
less of  its  justness  or  unjustness,  are  not  states,  but  are  mere 
voting  districts.  Just  public  sentiment,  for  its  expression  and 
application,  requires  the  existence  of  many  small  free  states,  dis- 


Just  public  skntime^nt  6l 

connected  to  the  extent  necessary  to  enable  each  to  be  free  from 
all  improper  external  control  in  educating  itself  in  the  ways  of 
justice;  mere  public  sentiment,  for  its  expression  and  applica- 
tion, requires  only  the  existence  of  a  few  great  states  divided 
into  voting  districts,  each  district  being  under  the  control  of  the 
Central  Government,  which  is  to  it  an  external  control.  Just 
public  sentiment,  as  the  basis  of  government,  is  a  basis  which 
makes  government  a  mighty  instrument  for  spirituality  and 
growth;  mere  public  sentiment,  regardless  of  its  justness  or 
unjustness,  as  the  basis  of  government,  is  a  basis  which  makes 
government  a  mighty  instrument  for  brutality  and  deterioration. 
Human  equality,  unalienable  rights,  government  according  to 
just  public  sentiment,  and  free  statehood,  are  inevitably  and 
forever  linked  together  as  reciprocal  cause  and  effect. 

The  ultimate  meaning  of  the  expression  "that  to  secure 
these  rights  governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed,"  seems 
therefore  to  be  that  by  the  common  law  of  nature  and  of  na- 
tions there  is  a  universal  right  of  free  statehood  which  pertains 
to  all  communities  on  the  face  of  the  earth  within  territorial 
limits  of  suitable  size  for  the  development  and  operation  of  a 
just  public  sentiment. 

So  complete  and  universal  are  the  principles  of  government 
by  just  public  sentiment  and  of  free  statehood  that,  according 
to  the  Declaration,  even  when  all  the  people  of  a  free  state  are 
meeting  together  to  alter  or  abolish  a  form  of  government 
which  has  become  destructive  of  the  ends  of  its  institution,  as 
it  is  declared  they  may  rightfully  do,  their  right  to  form  a  new 
government  is  not  absolute  so  that  they  can  rightfully  do  what- 
ever the  majority  wills,  but  is  limited  by  this  universal  common 
law,  so  that  they  can  rightfully  institute  only  a  new  form  of 
government  whose  foundation  principles  and  mode  of  organi- 
zation are  such  "as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness" — that  is,  to  secure  the  unalienable  rights 
of  individuals  to  life,  liberty  and  the  pursuit  of  happiness. 

The  declaration  of  the  universal  right  of  free  statehood  is 
accompanied,  in  the  Declaration,  by  the  claim  that  the  Colonies, 


62  ^run  que;stion  of  tejrminology 

as  free  states,  had  always  been  in  political  "connection"  with 
the  State  of  Great  Britain.  The  concluding  part  of  the  Declara- 
tion reads: 

"We,  therefore,  *  *  *  declare  that  these  United 
Colonies  are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states,  *  *  =i=  and  that  all  political  connec- 
tion between  them  and  the  State  of  Great  Britain  is,  and 
ought  to  be,  totally  dissolved." 

In  this  it  was  necessarily  implied  that  the  Colonies  had  always 
been  free  states  or  free  and  independent  states,  and  that,  by  the 
Declaration,  at  most  their  right  of  independent  statehood  came 
into  existence;  that  they  had  theretofore  at  all  times  been  in 
political  connection,  either  as  free  states  under  the  law  of 
nature  and  of  nations,  or  as  free  and  independent  states  by 
implied  treaty,  with  the  free  and  independent  State  of  Great 
Britain;  that  the  dissolution  of  the  connection  had  not  come 
about  by  an  act  of  secession  on  their  part,  but  was  due  to  the 
violation,  by  the  State  of  Great  Britain,  either  of  the  law  of 
nature  and  of  nations,  or  of  the  implied  treaty  on  which  the 
political  connection  was  based. 

The  term  "connection"  was  an  apt  term  to  express  a  rela- 
tionship of  equality  and  dignity.  "Connection"  implies  two 
things,  considered  as  units  distinct  from  one  another,  which  are 
bound  together  by  a  connecting  medium.  Just  connection  im- 
plies free  statehood  in  all  the  communities  connected.  Union  is 
a  form  of  connection  in  which  the  connected  free  states  are 
consolidated  into  a  unity  for  the  common  purposes,  though 
separate  for  local  purposes.  Merger  is  the  fusion  of  two  or 
more  free  states  into  a  single  unitary  state.  Connection  be- 
tween free  states  may  be  through  a  legislative  medium,  or 
through  a  justiciary  medium,  or  through  an  executive  medium. 
The  connecting  medium  may  be  a  person,  a  body  corporate,  or 
a  state.  States  connected  through  a  legislative  medium,  whether 
a  person,  a  body  corporate  or  a  state,  and  whether  wholly  ex- 
ternal to  the  states  connected  or  to  some  extent  internal  to 
them,  whose  legislative  powers  are  unlimited  or  which  deter- 
mines the  limits  of  its  own  legislative  powers,  are  "dependent" 


EMPIRE,  confe:de;ration,  union  63 

upon  or  "subject"  to  the  will  of  the  legislative  medium.  Such 
states  are  "dependencies,"  "dominions,"  "subject-states,"  or 
more  accurately  "slave-states," — or  more  accurately  still,  not 
states  at  all,  but  mere  aggregations  of  slave-individuals.  States 
connected  through  a  legislative  medium,  whether  a  person,  a 
body  corporate  or  a  state,  and  whether  wholly  external  to  the 
states  connected  or  in  part  internal  to  them,  whose  legislative 
powers  are  granted  by  the  states  and  which  has  only  such  legis- 
lative powers  as  are  granted,  are  in  a  condition  of  limited  de- 
pendence, dominion,  and  subjection;  but  their  relationship  is 
by  their  voluntary  act  and  they  may,  and  by  the  terms  of  the 
grant  always  do  to  some  extent  control  the  legislative  will  to 
which  they  are  subject  and  on  which  they  are  dependent. 
Where  states  are  connected  or  united  through  a  justiciary  me- 
dium, whether  that  justiciary  medium  is  a  person,  a  body  corpo- 
rate, or  a  state,  all  the  states  are  free  states,  their  relationships 
being  governed  by  law.  Where  states  are  connected  through 
an  executive  medium,  whether  that  executive  medium  is  a  per- 
son, a  body  corporate,  or  a  state,  all  the  states  are  free  and  inde- 
pendent states,  and  each  acts  according  to  its  will.  All  connec- 
tions in  which  the  legislative  medium, — whether  a  person,  a 
body  corporate  or  a  state,  and  whether  wholly  external  to  the 
states  connected,  or  to  some  extent  internal  to  the  states  con- 
nected,— has  unlimited  legislative  powers  or  determines  the 
limits  of  its  own  legislative  powers,  are  fictitious  connections, 
the  relationship  being  really  one  which  implies  "empire"  or 
"dominion"  on  one  side,  and  "subjection"  or  "dependence"  on 
the  other.  Such  connections  are  properly  called  "empires"  or 
"dominions."  So  also  all  connections  in  which  the  only  con- 
necting medium  is  a  common  executive,  whether  a  person,  a 
body  corporate  or  a  state,  are  fictitious  connections,  the  rela- 
tionship being  one  of  "permanent  alliance"  or  "confederation" 
between  independent  states.  Such  connections  are  properly 
called  "alliances"  or  "confederations."  The  only  true  connec- 
tions are  those  in  which  there  is  a  legislative  medium,  whether 
a  person,  a  body  corporate  or  a  state,  whose  legislative  powers 
are  limited,  by  agreement  of  the  connected  states,  to  the  com- 


64  1*HE  QUEJSTION   01?  TKRMINOtOGV 

mon  purposes,  and  those  in  which  there  is  a  justiciary 
medium,  whether  a  person,  a  body  corporate,  or  a  state,  which 
recognizes  its  powers  as  Hmited  to  the  common  purposes  by 
the  law  of  nature  and  of  nations,  and  which  ascertains  and  ap- 
plies this  law,  incidentally  adjudicating,  according  to  this  law, 
the  limits  of  its  own  jurisdiction.  Just  connections  tend  to 
become  unions,  it  being  found  in  practice  necessary,  for  the 
preservation  of  the  connection  in  due  order,  that  the  power  of 
limited  legislation  for  the  common  purposes  and  the  power  of 
adjudicating  and  applying  the  law  for  the  common  purposes 
should  extend  not  only  to  the  states,  but  to  all  individuals 
throughout  the  states. 

Thus  "dependence,"  as  a  fictitious  and  vicious  form  of  con- 
nection, is,  it  would  appear,  forever  opposed  to  "connection"  of 
a  just  and  proper  kind.  If  it  were  attempted  to  sum  up  the 
issue  of  t!he  American  Revolution  in  an  epigram,  would  not 
that  epigram  be :  "  'Colony,'  or  'Free  State  ?'  'Dependence,'  or 
'Just  Connection  ?'    'Empire,'  or  'Union  ?'  " 

According  to  the  opinion  of  the  Revolutionary  statesmen,  as 
it  would  seem,  a  universal  right  of  free  statehood  does  not  im- 
ply a  universal  right  of  self-government.  Statehood  and  self- 
government  are  two  different  and  distinct  conceptions.  The 
Americans  claimed  the  right  of  free  statehood  as  a  part  of  the 
universal  rights  of  man,  but  they  claimed  the  right  of  self- 
government  because  they  were  Englishmen  trained  by  genera- 
tions of  experience  in  the  art  of  self-government  and  so  capable 
of  exercising  the  art.  A  state  is  not  less  or  more  a  free  state 
because  it  has  self-government.  It  is  a  free  state  when  its 
just  public  sentiment  is  to  any  extent  ascertained  and  executed 
by  its  government, — however  that  government  may  be  in- 
stituted,— free  from  the  control  of  any  external  power.  It  does 
not  prevent  a  region  from  being  a  free  state  that  its  govern- 
ment is  wholly  or  partly  appointed  by  an  external  power,  if 
that  government  is  free  from  external  control  in  ascertaining 
and  executing  the  just  local  sentiment  to  any  extent.  Nor  does 
it  interfere  with  the  right  of  free  statehood  when  an  external 
power  stands  by  merely  to  see  that  the  local  government  ascer- 


SEIvI^-GOVERNMENT,  INDEPENDENCE  65 

tains  and  executes  the  just  local  sentiment  to  a  proper  extent. 
The  external  power  in  that  case  is  upholding  the  free  statehood 
of  the  region.  It  stands  as  surety  for  the  continuance  of  free 
statehood. 

The  right  of  self-government,  according  to  this  view,  is  a 
conditional  universal  right  of  free  states.  When  a  community, 
inhabiting  a  region  of  such  territorial  extent  that  it  is  not  too 
large  to  make  it  possible  for  a  just  public  sentiment  concerning 
its  affairs  to  be  developed  and  executed,  and  not  so  small  as  to 
make  it  inconvenient  that  it  should  be  in  any  respect  free  frorq 
external  control,  is  of  such  moral  and  intellectual  capacity  that 
it  can  form  and  execute  a  just  public  sentiment  concerning  its 
internal  affairs  and  its  relations  with  other  communities,  states 
and  nations,  it  has  not  only  the  right  of  free  statehood, — that 
is,  of  political  personality, — which  is  of  universal  right,  but  also 
the  right  of  self-government.  The  right  of  such  a  free  state 
to  self-government  is  complete  if  there  be  no  just  political  con- 
nection or  union  between  it  and  other  free  states,  or  partial,  if 
such  a  just  connection  or  union  exists,  being  limited,  in  this 
latter  case,  to  the  extent  necessary  for  the  preservation,  in  due 
order,  of  the  connection  or  union. 

Independence  was  regarded  apparently  also,  by  the  Declara- 
tion, when  it  declared  the  Colonies  to  be  "free  and  independent 
states,"  to  be  a  right  superadded  to  the  right  of  free  statehood 
in  some  cases,  and  therefore  to  be  a  conditional  universal  right 
of  free  states — that  is,  a  right  universally  existing  where  the 
conditions  necessary  to  independence — great  physical  strength, 
and  great  moral  and  intellectual  ability — exist. 

The  Colonies  regarded  themselves  as  free  states  in  such  a 
just  and  rightful  connection  with  the  free  and  independent 
State  of  Great  Britain  as  to  form  with  it  a  union.  From  this 
it  followed,  inasmuch  as  this  connection  and  union  was  con- 
ceived of  as  existing  under  a  universal  common  law,  that  the 
State  of  Great  Britain,  through  its  Government,  was  the  jus- 
ticiary medium  which  connected  the  free  states  of  that  which 
they  conceived  of  as  the  British- American  Union,  and  as  such 
applied  the  principles  of  this  universal  common  law  for  pre- 


^  TH^  QUESTION  O^  TElRMINOLOGY 

serving  and  maintaining  in  due  order  the  connection  and  union. 
There,  therefore,  resulted  the  conception  of  Great  Britain  as 
what  may  perhaps  be  called  "the  Justiciar  State"  of  this  British- 
American  Union.  If  we  were  to  use  the  exact  language  of  the 
Revolution,  it  would  probably  be  more  proper  to  speak  of  Great 
Britain  as  "the  Superintending  State"  of  the  British-American 
Union,  as  the  power  of  Great  Britain  over  the  Colonies  was 
generally  spoken  of  by  the  Americans  as  "the  superintending 
power."  Lord  Chatham  used  this  expression  in  his  famous  bill 
introduced  in  the  House  of  Lords.  The  expression  "Justiciar 
State,"  however,  seems  to  be  more  scientifically  correct.  A 
Justiciar  was  an  official  who  exercised  the  power  of  government 
in  a  judicial  manner.  His  power  was  neither  strictly  legisla- 
tive, nor  strictly  executive,  nor  strictly  judicial,  but  was  com- 
plex, being  compounded  of  all  three  powers,  so  that  his  execu- 
tive action,  taken  after  judicially  ascertaining  the  facts  in  each 
case  and  applying  to  them  just  principles  of  law,  resulted  in 
action  having  the  force  of  legislation. 

The  Revolutionary  statesmen  have  left  a  very  considerable 
literature  showing  their  views  concerning  the  nature  of  the 
right  of  a  state  to  be  the  Justiciar  State  of  a  Union  of  States, 
and  concerning  the  powers  which  a  Justiciar  State  may  right- 
fully exercise. 

Arguing  on  the  same  basis  as  that  adopted  by  them  regard- 
ing the  right  of  self-government  and  independence,  it  appears 
that  they  considered  the  right  of  a  state  to  act  as  Justiciar  for 
other  states  to  be  a  right  superadded  to  the  right  of  self-gov- 
ernment and  independence  in  some  cases — that  is,  that  justiciar- 
ship  is  a  conditional  universal  right  of  self-governing  and  inde- 
pendent states,  the  conditions  necessary  to  its  existence  being 
great  physical  strength,  a  judicial  character  and  a  capacity  for 
leadership. 

The  power  exercised  by  a  Justiciar  State  in  a  Justiciary 
Union,  they  recognized  as  being  neither  strictly  legislative,  nor 
strictly  executive,  nor  strictly  judicial,  but  a  power  compounded 
of  all  these  three  powers.  They  considered  that  it  was  to  be 
exercised  for  the  common  purposes  after  investigation  by  judi- 


JUSTICIARY  STATEHOOD  (i^ 

cial  methods ;  that  the  just  pubHc  sentiment  of  the  free  states 
connected  and  united  with  the  Justiciar  State  was  to  be  consid- 
ered by  it  in  the  determination  of  the  common  affairs ;  and  that 
the  action  of  the  Justiciar  State  was  to  result,  after  proper  hear- 
ing of  the  free  states  and  all  parties  concerned,  in  dispositions 
and  regulations  made  according  to  just  principles  of  law,  which 
were  to  have  the  force  of  supreme  law  in  each  of  the  connected 
and  united  free  states  respectively.  This  kind  of  power,  which 
the  Fathers  called  "the  superintending  power"  or  "the  disposing 
power"  under  the  law  of  nature  and  of  nations,  and  which  may 
be  called,  using  an  expression  now  coming  into  use,  "the  power 
of  final  decision,"  or  more  briefly  "the  justiciary  power,"  being 
neither  legislative,  executive  nor  judicial,  but  more  nearly  ex- 
ecutive than  legislative,  the  more  conservative  among  them  con- 
sidered might  be  exercised,  consistently  with  the  principles  of 
the  law  of  nature  and  of  nations,  either  by  the  Legislative  As- 
sembly of  the  Justiciar  State  or  by  its  Chief  Executive,  advised 
by  properly  constituted  Administrative  Tribunals  or  Councils; 
the  action  of  the  Legislative  Assembly  superseding  that  of  the 
Chief  Executive  in  so  far  as  they  might  be  inconsistent  with 
each  other.  This  right  of  both  the  Legislative  Assembly  and  of 
the  Chief  Executive,  properly  advised,  to  exercise  the  powers 
of  the  Justiciar  State — the  former  having  supreme,  and  the  lat- 
ter superior  justiciary  power, — under  the  law  of  nature  and  of 
nations,  is,  I  believe,  also  recognized  by  our  Constitution,  as 
I  have  elsewhere  attempted  to  show. 

Of  course  there  must  be  conditions  of  transition  where  the 
relations  between  free  states  which  would  normally  be  in  union, 
or  between  detached  portions  of  what  would  normally  be  a 
unitary  state,  temporarily  assume  a  form  which  is  partly  one  of 
union  or  merger,  and  partly  of  dependency.  The  justification 
of  all  such  forms  of  relationship  must,  it  would  seem,  be  found 
in  the  fundamental  right  which  every  independent  state, 
whether  a  justiciar  state  or  not,  has  to  the  preservation  of  its 
existence  and  its  leadership  or  judgeship — that  is,  in  the  right 
of  self-preservation,  which,  when  necessary  to  be  invoked,  over- 
rules all  other  rights.    On  this  theory  must,  it  would  seem,  be 


68  The  question  of  terminology 

explained  the  relations  between  the  American  Union  and  its 
Territories,  between  Germany  and  Alsace-Lorraine,  and  be- 
tween England  and  Ireland.  On  this  theory  of  self-preserva- 
tion, also,  must,  it  would  seem,  be  explained  the  permanent  rela- 
tionship of  dependency  which  exists  between  the  District  of 
Columbia  and  the  American  Union — such  dependency  being 
necessary  to  the  preservation  of  the  life  of  the  Union. 

Out  of  the  conception  of  a  universal  common  law  of  nature 
and  of  nations  which  governs  all  human  acts  and  relation- 
ships,— and  therefore  all  the  acts  and  relationships  of  states  and 
nations  as  well  as  of  men,  bodies  corporate  and  communities, — 
there  has  arisen  and  at  the  present  time  exists,  a  science  of  the 
universal  and  common  law  of  the  state,  called  the  Science  of  the 
Law  of  the  State,  which  concerns  itself  with  the  internal  rela- 
tions of  a  state  to  its  people,  its  bodies  corporate  and  its  com- 
munities, and  a  science  of  the  universal  and  common  law  of 
independent  states,  called  the  Science  of  International  Law, 
which  concerns  itself  with  the  occasional  and  temporary  rela- 
tions of  independent  state§.  The  great  field  of  law  which  con- 
cerns the  permanent  relations  of  free  states  is  not  yet  covered 
by  a  recognized  science.  Must  there  not  therefore  emerge 
from  this  conception  of  a  universal  and  common  law  of  nature 
and  of  nations,  a  third  science  of  law,  covering  this  field,  which 
will  take  as  its  basal  proposition  the  doctrine  that  free  state- 
hood is  the  normal  and  rightful  condition  of  all  communities  on 
the  earth's  surface  within  suitable  limits  for  the  formation  of 
a  just  public  sentiment,  and  which  will  concern  itself  with  the 
permanent  relations  between  free  states?  As  such  permanent 
relations  must  always  be  by  just  connection,  either  in  its  simple 
form  or  in  the  form  of  union,  may  not  such  a  science  of  law, 
standing  between  the  science  of  the  Law  of  the  State  and  the 
science  of  International  Law,  be  called  the  science  of  the  Law 
of  Connections  and  Unions  of  Free  States? 

Taking  the  whole  Declaration  together,  and  reading  it  in 
the  light  of  the  political  literature  which  was  put  forth  on  both 
sides  of  the  water  between  the  years  1764  and  1776,  it  seems  to 
be  necessary  to  conclude  that  the  views  of  the  most  conservative 


the:  british-amp:rican  union  69 

of  the  American  statesmen  of  the  period  concerning  the  con- 
nection between  Great  Britain  and  the  Colonies  were  these : 

They  considered,  as  I  interpret  their  language,  that  the  con- 
nection between  free  and  independent  State  of  Great  Britain, 
and  the  American  Colonies,  as  free  states,  had  existed  and  of 
right  ought  to  have  existed,  according  to  the  principles  of  the 
law  of  nature  and  of  nations — that  law  being  based  on  principles 
opposed  to  the  principles  applied  by  the  governments  of 
Europe,  and  being  thus  what  may  be  called  a  law  of  nature  and 
of  nations  according  to  the  American  System.  Had  they  used 
a  more  definite  and  scientific  phraseology,  it  seems  that  their 
view  would  best  be  expressed  by  saying  that  they  considered 
that  the  relationship  between  Great  Britain  and  the  Colonies 
had  always  existed  according  to  the  principles  of  the  Law  of 
Connections  and  Unions  of  Free  States.  They  accordingly  ad- 
mitted, as  I  understand  them,  that  Great  Britain,  as  a  free  and 
independent  state,  had  power,  as  Justiciar,  over  the  American 
Free  States,  for  the  common  purposes  of  the  whole  Union,  to 
finally  decide,  by  dispositions,  ordinances  and  regulations  hav- 
ing the  force  of  supreme  law,  made  through  its  Government 
after  a  judicial  hearing  in  each  case  for  the  investigation  of 
facts  and  the  application  to  them  of  the  principles  of  the  Law 
of  Connections  and  Unions  of  Free  States,  upon  all  questions 
of  common  interest  arising  out  of  the  connection  and  union ; 
and  that  each  of  the  American  Free  States  had  power,  through 
its  Legislature,  to  legislate  according  to  the  just  public  senti- 
ment in  each,  and  the  right  to  have  its  local  laws  executed  by  its 
Executive  and  interpreted  and  applied  by  its  Courts,  free  from 
all  control  by  the  State  of  Great  Britain,  except  what  was 
necessary  to  protect  and  preserve  the  Union. 

In  this  view,  the  actions  of  the  Americans  show  the  evolution 
of  a  continuous  theory  and  policy,  and  the  application  of  a  sin- 
gle American  system  of  principles, — a  system  which  was  based 
upon  free  statehood,  just  connection  and  union.  The  British- 
American  Union  of  1763  was  a  Union  of  States  under  the  State 
of  Great  Britain  as  Justiciar,  that  State  having  power  to  dispose 
of  and  make  all  rules  and  regulations  respecting  the  connected 


70  THK  QUESTION   OF  TERMINOLOGY 

and  united  free  states,  needful  to  protect  and  preserve  the  con- 
nection and  union,  according  to  the  principles  of  the  Law  of 
Connections  and  Unions.  The  dissolution  of  this  Union,  caused 
by  the  violation  by  the  State  of  Great  Britain  of  its  duties  as 
Justiciar  State,  gave  a  great  impetus  to  the  extreme  states'- 
rights  party,  and  the  next  connection  formed, — that  of  1778 
under  the  Articles  of  Confederation, — was  not  a  Union,  the 
Common  Government  (the  Congress)  being  merely  a  Chief 
Executive.  Such  a  connection  proving  to  be  so  slight  as  to  be 
little  more  than  a  fiction,  they  formed,  under  the  Constitution 
of  1787,  the  only  other  kind  of  a  union  which  appears  to  be 
practicable,  namely,  a  union  under  a  common  government  which 
was  a  Chief  Legislature  for  all  the  connected  and  United  States 
by  their  express  grant,  and  whose  powers  were  expressly 
limited,  by  limitation  in  the  grant,  to  the  common  purposes  of 
the  whole  connection  and  union  of  free  states. 

If  the  Constitution,  in  defining  what  are  the  common  pur- 
poses of  the  Union  and  what  the  local  purposes  of  the  States 
of  the  Union,  is  declaratory  of  the  principles  of  the  Law  of 
Connections  and  Unions  of  Free  States,  as  it  seems  not  unrea- 
sonable to  hold,  the  Limited  Legislative  Union  formed  under 
the  Constitution  may  perhaps  be  considered,  in  view  of  the 
supremacy  of  the  Judiciary,  as  Guardians  of  the  Constitution, 
over  the  Limited  Legislature,  as  a  species  of  Justiciary  Union. 

Moreover,  if  in  what  has  been  said  we  are  correct,  the 
relationship  at  present  existing  between  the  American  Union 
and  the  Insular  regions,  is  that  of  de  facto  Justiciary  Union, 
and  the  American  Congress,  under  the  lead  of  President  Mc- 
Kinley  and  President  Roosevelt,  has  acted,  with  reference  to 
these  regions,  according  to  the  principles  of  the  American 
system.  The  American  Union,  through  President  McKinley, 
has  declared  itself  to  be  "a  liberating,  not  a  conquering  nation," 
and  has  recognized  the  people  of  Hawaii,  Porto  Rico  and  the 
Philippines  as  each  having  a  separate  and  local  citizenship,  thus 
recognizing  each  of  these  regions  as  a  de  facto  free  state  con- 
nected with  the  American  Union.  The  action  of  the  American 
Union  extends  to  the  regulation  of  the  action  of  individuals  in 


the;  dREATEiR  AMERICAN   UNION  7t 

these  free  States,  so  that  a  Greater  x\merican  Union  of  Free 
States  exists  de  facto.  To  bring  into  existence  a  Greater 
American  Union  de  jure,  it  needs,  first,  the  public  and  express, 
recognition  by  the  American  Union  of  itself  as  the  Justiciar 
State,  and  of  each  of  the  separate  Insular  regions  within  proper 
territorial  limits,  as  a  Free  State  in  just  connection  and  union 
with  the  American  Union ;  and,  secondly,  the  establishment  by 
the  x\merican  Union  of  the  necessary  Advisory  Council  for 
investigating  facts  and  for  advising  the  President  before  he,  on 
behalf  of  the  American  Union  as  Justiciar  State,  exercises  his 
superior  justiciary  powers,  and  for  advising  the  Congress  be- 
fore it,  in  the  same  behalf,  exercises  its  supreme  justiciary 
powers.  Councils  suitable  for  advising  the  local  Governors, 
when  they,  on  behalf  of  the  American  Union  as  Justiciar  State, 
exercise  their  inferior  justiciary  powers,  already  exist.  Of  such 
a  Greater  American  Union,  the  present  American  Union  would 
be  the  Supreme  Justiciary  Head,  with  power  to  finally  deter- 
mine the  questions  arising  out  of  the  relationship,  not  by  edict 
founded  on  will  and  force,  but  by  decision  carefully  made  in 
each  case  after  ascertaining  the  facts  in  each  case  and  applying 
to  them  the  principles  of  the  Law  of  Connections  and  Unions 
properly  applicable  to  them. 

Is  not  this  theory  the  true  via  media?  The  theory  of  the 
automatic  extension  of  the  constitution  of  a  state  over  its  an- 
nexed insular,  transmarine  and  transterranean  regions  which 
from  their  local  or  other  circumstances  can  never  equally  par- 
ticipate in  the  institution  and  operation  of  its  government,  in 
some  cases  protects  individual  rights,  but  it  takes  no  account 
of  the  right  of  free  statehood,  which  is  the  prime  instrumen- 
tality for  securing  these  rights.  The  theory  of  a  power  over 
these  regions  not  regulated  by  a  supreme  law,  is  a  theory  of 
absolute  power  over  both  individuals  and  communities  in  these 
regions, — a  theory  which  implies  an  absence  of  all  rights.  The 
theory  of  a  power  over  these  regions  based  on  the  principles 
of  the  Law  of  Connections  and  Unions,  granting  that  this  law 
is  itself  based  on  the  right  of  human  equality,  protects  the 
rights  of  persons,  of  communities,  of  states  and  of  nations.     On 


7^  THE  QUE:STI0N   of  TEjRMINOtOGY 

this  theory  the  ''Territory  Clause"  of  the  Constitution  recog- 
nizes the  Law  of  Connections  and  Unions  as  determining  the 
relationship  between  the  American  Union  and  the  Insular 
regions — "needful"  rules  and  regulations  being  those  which  are 
adapted  to  accomplish  the  end  desired  and  which  are  con- 
sistent with  the  principles  of  the  Law  of  Connections  and 
Unions  as  declared  in  the  Declaration  of  Independence.  On 
this  theory,  the  doctrine  of  the  Supreme  Court  that  the  civil 
rights  of  individuals  in  cases  growing  out  of  our  relations  with 
our  Insular  brethren  are  protected  by  "the  fundamental  prin- 
ciples formulated  in  the  Constitution,"  or  by  "the  applicable 
provisions  of  the  Constitution,"  is  translated  into  the  doctrine 
that  these  individual  and  civil  rights  are  protected  by  the  prin- 
ciples of  the  Law  of  Connections  and  Unions  of  Free  States,  as 
these  principles  are  formulated  in  the  Constitution  and  as  they 
are  disclosed  by  an  examination  of  the  applicable  provisions  of 
the  Constitution,  and  that  not  only  are  these  civil  rights  pro- 
tected by  this  law,  but  also  the  political  rights  of  all  the  parties 
to  the  relationship.  On  this  theory,  the  jurisdiction  of  the  Su- 
preme Court  continues  to  be  exactly  the  same  as  at  present. 
The  necessary  Advisory  Councils  for  ascertaining  the  just  po- 
litical relations  between  the  American  Union  and  the  Insular 
regions  and  for  determining  the  political  rights  growing  out  of 
that  relationship,  would  not  in  the  least  interfere  with  the  Su- 
preme Court  in  the  exercise  of  its  functions.  They  would 
supplement  that  Court,  which  now  protects  the  civil  rights  of 
all  concerned  through  its  adjudications  in  civil  cases,  by  assist- 
ing the  Congress  and  the  President  to  protect  and  preserve  the 
political  rights  of  all  concerned  through  dispositions  and  need- 
ful rules  and  regulations  in  political  cases. 

By  adopting  this  theory  of  the  Reformation  and  the  Ameri- 
can Revolution,  may  not  the  American  System  extend  in- 
definitely without  danger  to  America  herself?  There  would 
be  no  domination,  no  subjection.  The  same  Law  of  Connec- 
tions and  Unions  would  extend  over  and  govern  throughout  the 
whole  Greater  American  Union.  This  Greater  American 
Justiciary  Union  would  be  but  a  logical  application  of  the  prin- 


THK  ame:rican  systejm  73 

ciples  underlying  the  American  Legislative,  Executive  and 
Judicial  Union  formed  by  the  Constitution  of  the  United  States. 

It  would  not  be  the  Constitution  which  would  follow  the  flag 
into  the  regions  which  America  has  annexed  to  herself,  but  the 
Law  of  Connections  and  Unions,  which  is  a  part  of  the  Law 
of  Nature  and  of  Nations  according  to  the  American  System. 

I  recur,  therefore,  to  my  first  proposition  and  submit  to  your 
judgment  whether  the  terms  "colony,"  "dependence,"  and 
"empire,"  on  the  one  hand,  and  the  terms  "free  state,"  "just 
connection,"  and  "union,"  on  the  other,  are  not  the  symbols  of 
two  great  and  fundamentally  opposed  systems  of  politics — the 
one  European,  and  the  other  American ;  whether  the  American 
terms  and  the  American  System  are  not  capable  of  being  ap- 
plied universally  and  beneficently,  in  the  way  pointed  out 
above,  throughout  all  places  outside  the  present  Union  which 
are  within  the  limits  of  its  justiciary  power;  and  whether,  if 
they  are  capable  of  this  application,  it  is  not  our  duty,  both 
logically  and  ethically,  to  use  the  American  terms  in  describing 
the  relations  between  us  and  our  Insular  brethren,  applying  at 
the  same  time  the  principles  of  the  American  System,  and  thus 
calling  into  existence  a  Greater  American  Union. 

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